JIM LEHRER: Now, the differences between civil and criminal court cases. It's relevant because of a civil court hearing that began today in Santa Monica, California, concerning O.J. Simpson. The former football star was acquitted last month in criminal court on charges he murdered his ex-wife and her friend. Stuart Taylor is here to explain the differences in the two trials. He's a senior writer at "American Lawyer" and "Legal Times" and a regular on this program. Stuart, welcome.
STUART TAYLOR: Nice to be here.
JIM LEHRER: Set the situation for us in this O.J. matter, the civil court case. What, who brought it? What do they want?
MR. TAYLOR: The families of the two murder victims here of Nicole Brown Simpson and Ronald Goldman are suing and in essence, they're suing for money, which is the only thing they can sue for, but Mr. Goldman, at least, Frederick Goldman, the father of that victim, has made it clear that his real objective is to render O.J. Simpson penniless, if he can, not so much to make himself rich.
JIM LEHRER: Why does the double jeopardy thing not apply in this matter? The man's already been acquitted of murder. Why can this be allowed?
MR. TAYLOR: Double jeopardy only applies to criminal prosecutions. The historic purpose of it was to prevent the government from coming back at you again and again after you get acquitted. In a civil case, there's a different standard of proof. For example, there are a lot of differences, and the purpose is to enable the victims of a civil wrong to get compensation.
JIM LEHRER: So they are essentially suggesting or charging in a civil way that O.J. Simpson did, in fact, murder these two folks. Now what do they--how do they have to prove it? You say there's a different burden of proof or a different element of proof. What's the difference?
MR. TAYLOR: They use the same sort of evidence you would use in a criminal case, but, instead, having to prove beyond a reasonable doubt that he was the killer, all they have to prove is that it's more likely than not, a 51 percent probability, if you will, that he's the killer, which is a lot easier to do. There are other differences too, such as in the criminal case, he could only have been convicted if the jury had been unanimous to convict. Of course, it was unanimous to acquit, so that didn't become an issue. But in the civil case, a nine to three vote to find him liable would suffice.
JIM LEHRER: Explain why there's this difference between the criminal approach and the civil approach.
MR. TAYLOR: As to the unanimity requirement for the jury, historically you needed unanimous juries for either a civil or a criminal case, but in recent decades, a lot of the states have experimented with non- unanimous juries in civil cases, about half of the states have, only two have done so in criminal cases. The Supreme Court has upheld that, and I think the fundamental logic is the stakes aren't as high. You're not talking about locking up somebody for the rest of his life or for a long time. You're talking about taking money from him, and therefore, you don't need as many protections built in for the accused. The same is true of the burden of proof. Before we put somebody in jail in this country, we want to be very sure that he committed the crime. In a civil case, we don't need to be quite as sure.
JIM LEHRER: Now in this Simpson matter or any matter similar to this, can, can the defendant be forced to testify, keeping in mind that Simpson did not testify in his own defense in the criminal case?
MR. TAYLOR: Yes. You can plead the Fifth Amendment in a civil case if there's some risk of subsequent criminal prosecution for what you said. In this case, there is no risk. He can't be prosecuted again. That's where the double jeopardy kicks in, and, therefore, he has no basis on which to take a Fifth Amendment. He could refuse to testify. They can't make him talk. But the consequence would be a default judgment, which basically means he loses the case automatically if he refuses to testify.
JIM LEHRER: Now, he--they could force him to go to the witness chair, but they couldn't force him to answer any questions?
MR. TAYLOR: They can't really even force him to go to the witness chair. He could just not show up. But then the consequence would probably the judge would say, okay, I'm going to assume you basically forfeited the case, you lose. And then the only issue left for the jury to decide would be amount of damages.
JIM LEHRER: Now this thing that began today in Santa Monica is just a beginning hearing. Also, the speedy trial thing does not apply in civil cases as well, as much as it does in criminal cases, is that correct?
MR. TAYLOR: It certainly doesn't. They trend to drag on and on.
JIM LEHRER: And this thing could go on for a long time.
MR. TAYLOR: It could, but it's not, it's not foreordained that it would. If one side or the other tactically wants to drag it out, perhaps they could, but both sides might decide for tactical reasons, they want to rush ahead with it. One can imagine any number of reasons they might want to do that, and as of now, there's a trial date set for this coming April. I wouldn't bet on it going forward in April, but I wouldn't bet the ranch against it either.
JIM LEHRER: Most civil cases are settled out of court. There would be--would there be any impetus on the defendant's side, on Simpson's side to settle this without it appearing as if he was admitting guilt after all?
MR. TAYLOR: Well, that would be one problem, although the impetus might be to try and save some of his money by paying, by paying some, and then getting away from it, and not conceding to anything. You can settle a case without saying, you know--you wouldn't have to say I did it, you just have to say I'm worried that a jury might think I did--save legal expenses. I think what will stop a settlement here is that, again, Mr. Goldman, the father of Ron Goldman, the victim, has made it clear he doesn't just want the money. He wants to put O.J. Simpson on the stand, to have him cross-examined to prove his guilt, and to bankrupt him if he can. Now, presumably, O.J. Simpson wouldn't settle it by offering to pay everything he has.
JIM LEHRER: Yeah. Finally, of course, the criminal case became a big television, real life soap opera. What are the rules on televising any kind of civil action like this in California?
MR. TAYLOR: It's basically up to the judge who tries the case whether he wants to let cameras in or not, and judges have fairly broad discretion to do that or not to do it. And the judge who's going to try this hasn't even been chosen yet. There's a judge who's been assigned to handle the pre-trial motions, but he won't necessarily be the same one who tries the case. So no determination has been made on that yet.
JIM LEHRER: So we do not know yet whether we're going to have OJ Two?
MR. TAYLOR: We don't know whether we're going to have it on TV. That's certainly true.
JIM LEHRER: Thank you very much, Stuart. Good to see you again.