MARGARET WARNER: A year and a half ago one-time football star O.J. Simpson was acquitted of murder in the 1994 killings of his former wife, Nicole Brown Simpson, and her friend, Ronald Goldman. Yet, over the past four months he's been back in court as a defendant in a civil lawsuit brought by the victims' families. The jurors began their deliberations this afternoon, and to explain the distinctions between these two trials we're joined by NewsHour regular Stuart Taylor, correspondent for the American Lawyer and Legal Times. Welcome back, Stuart.
STUART TAYLOR, The American Lawyer: Nice to be here.
MARGARET WARNER: What are these jurors being asked to decide?
STUART TAYLOR: They'll have a verdict for them that asks eight questions. The first of them is fairly straightforward. Do you find that defendant Simpson wilfully or wrongfully caused the death of Ronald Goldman, and do you find it by a preponderance of the evidence? After that, the questions might seem a little strange to some people, which reflect some of the peculiarity of running a murder case through a civil damage suit. For example, the jury's not asked whether Mr. Simpson killed his wife, Nicole Brown Simpson. It asked whether he committed battery upon her.
MARGARET WARNER: Now, why is that?
STUART TAYLOR: Her estate, her family did not bring what's called a wrongful death action, presumably because they didn't want her children and his children to have to testify in their part of the estate in a wrongful death action. The damage the victims or the survivors suffer is the loss of companionship and love of a dead person.
MARGARET WARNER: So--
STUART TAYLOR: They sued in what's called a survivorship action, which is as though Nicole Brown Simpson were suing from the grave for what was done to her.
MARGARET WARNER: And now the burden of proof is also quite different in this case than it was in the criminal case, right?
STUART TAYLOR: Yes. On the question of whether he caused the death of Mr. Goldman, whether he committed battery against Nicole Brown Simpson, and he would have committed battery on her by killing her, among other things, that's clear enough. It's called a preponderance of the evidence, which means more than 50/50 probability. If you think it's more probable than not that O.J. Simpson did these acts, then you should find against him. On some of the other questions the jury's being asked, did you find that these acts were committed with oppression or with malice, those questions, although the jury doesn't know it yet, really go to whether punitive damages could be awarded, and on that there's a higher standard of proof, clear and convincing evidence. The highest standard of proof, beyond a reasonable doubt, is what's used in criminal cases, and that's not required here.
MARGARET WARNER: And also the jury does not have to be unanimous, does it?
STUART TAYLOR: No. Nine of twelve jurors can bring home a verdict, even if the other three disagree, either way. So if nine of the jurors want to bring a verdict against Mr. Simpson or for Mr. Simpson, that's enough. In a criminal case the jury has to be unanimous, or it's either a hung jury, or the defendant wins.
MARGARET WARNER: Now, is it unusual? How often do we see cases in which a defendant's been acquitted of an action, a criminal case, and yet essentially is sued on the same basis in a civil action?
STUART TAYLOR: It's quite unusual but it happens sometimes. And probably the closest parallel that I've seen mentioned lately in Bernard Goetz, the so-called "subway vigilante," who was acquitted of the most serious charges against him in the criminal case for shooting four black people who he claims accosted him in the subway, and then years later one of them who is paralyzed brought a civil suit against him and won a multi-million dollar verdict which Mr. Goetz didn't have enough money to pay, but he did win.
MARGARET WARNER: But why isn't this--and why isn't this considered double jeopardy? The Constitution protects you against having to face the same charges twice. Why does this not apply in a case like this?
STUART TAYLOR: The double jeopardy clause which in the Fifth Amendment only applies in criminal cases, you cannot be prosecuted twice for the same thing, except maybe in federal court after you've been prosecuted in a state court, as happened with the police accused in the Rodney King case, but it's no problem, and it's quite clear that the double jeopardy clause does not bar a civil suit for the same conduct of which you've been criminally acquitted.
MARGARET WARNER: Where does the difference in the burden of proof required come from?
STUART TAYLOR: It's in the U.S. Constitution which has roots in the common law. The Supreme Court has interpreted the Constitution to require proof of guilt beyond a reasonable doubt in all criminal cases, and as a tradition in civil cases it's typically a preponderance of the evidence, more than 50/50, although in some civil cases it's clear and convincing evidence.
MARGARET WARNER: But, I mean, why is that, just because you're a much bigger risk if you're facing criminal charges?
STUART TAYLOR: Exactly. In a criminal case you can at worst be executed or be put in prison. The stakes are very high. In a civil case it's basically about an award of money, and our system has for hundreds of years decided that you need more confidence of what happened to put somebody in prison, for example, than to order him to pay some money to the alleged victim.
MARGARET WARNER: So what, if any, differences have we seen in this civil case versus the criminal case in terms of the basic theory each side had about what happened that evening and the evidence they presented?
STUART TAYLOR: Fundamentally, the issues are still the same. One side is arguing the evidence is clear that O.J. Simpson killed these people. The other side is arguing it's a police conspiracy, they manufactured the evidence, and doesn't prove anything. There have been differences in tactics. For example, in the civil trial, the plaintiff's lawyers, perhaps learning from the mistakes of the prosecutors in the criminal trial, did not put Marc Fuhrman on the stand to expose themselves to other charges.
MARGARET WARNER: The LA Police Department detective.
STUART TAYLOR: Right, who was portrayed as a racist and the whole thing was portrayed as a racist conspiracy, and they were able to keep that issue in the background of this trial, and also they had some new evidence. They had a whole bunch of photographs of O.J. Simpson wearing a fancy pair of Italian shoes that matched in terms of type the footprints found at the scene.
MARGARET WARNER: And the other big difference is that O.J. Simpson couldn't avoid testifying in this case.
STUART TAYLOR: Yes. In the criminal case he did not testify. That was his constitutional right not to testify, and the prosecution could not comment on his failure to testify in a civil case. He was called initially by the plaintiff's lawyers, and he had to testify.
MARGARET WARNER: And so briefly, what are the possible outcomes from this deliberation that's going on right now?
STUART TAYLOR: Well, if the jury finds that--says no as to causing the death of Mr. Goldman and no as to battering Nicole Brown Simpson, then it's over. But if the jury does find that he essentially killed these people and also finds oppression and malice, which would be hard not to find if you think it killed these people, then there's a whole new phase in which the jury is--hears new evidence bearing on whether punitive damages should be awarded.
MARGARET WARNER: Okay. Thanks, Stuart, very much.
STUART TAYLOR: Thank you.