Son of Simpson trial is no rerun Money: The civil trial that got under way this week against O. J. Simpson is far different from the criminal case that acquitted him of murder. This time lawyers will be going after his money.

September 20, 1996|By Sun Journal

Brace yourself for more of the same: Posturing attorneys, headline-making testimony, nightly news footage of witnesses leaving a courthouse trailed by minicams and microphones.

Those will be powerful, perhaps unwelcome reminders of the O. J. Simpson murder trial, which ended in October in his acquittal. As nearly everyone who reads a newspaper or watches TV surely knows, he is on trial again. But there are key differences between the criminal trial of 1995 and the civil trial that began this week.

A criminal case is about a defendant's freedom. A civil case is about a defendant's money.

In a criminal trial, a defendant can exercise his constitutional right not to testify. He (or she) can be compelled to testify at a civil trial.

Simpson's criminal trial was, or seemed to be, the longest-running TV hit since "Bonanza." The civil trial will not be televised.

Indeed, the civil and criminal courts are very different systems, as Sun staff writer Mark Hyman explains.

The Constitution guarantees that no one will face double jeopardy -- that is, being tried twice for the same crime. If a person is tried and acquitted in a criminal trial, as happened with Simpson, doesn't that bar a second trial on the same matter?

Yes, but only if the second trial is in criminal court. In that situation, the government would be pressing the case, and the constitutional ban on trying a defendant twice for the same crime would apply. But it's different when the second trial is a civil action.

In a civil wrongful death action, such as the one filed against Simpson, charges are brought by individuals or perhaps by the estate of a victim, not the government. So the constitutional protection hasn't been violated.

If that's not double jeopardy, what is?

Say a criminal defendant is on trial, charged in a major drug case. Midway though the trial, a mistrial is declared because of misconduct by the government prosecutor. Some courts have ruled that the case may not be retried because of the protection against double jeopardy.

Some criminal defendants face life in prison or the death penalty if found guilty. What happens to the loser in a civil case?

Losers sometimes write a very large check.

Many civil lawsuits are filed by people injured in accidents -- anything from a car wreck to a customer scalded by hot coffee served in a restaurant. If they file a civil lawsuit, they probably want the party they hold responsible to pay. The supposed victims total up their losses, present evidence and wait for a verdict.

Juries can award all or some of the money sought. Or they might reject the argument entirely and absolve the accused. (And in civil cases, the accused are never "guilty," even if juries find against them. They're "liable.")

One jury already has acquitted Simpson of murder charges. Hearing the same evidence, why would a jury in a civil case find him liable of "wrongful death?"

It might not. But important distinctions between civil and criminal trials could tip the balance. The most critical is known as "burden of proof," meaning the degree to which jurors must be convinced their verdict is the correct one.

Because penalties are harshest in criminal cases -- loss of freedom, or even death -- juries may convict only if they are convinced of the defendants' guilt "beyond a reasonable doubt."

In civil trials, a less stringent standard is applied, based on the "preponderance of the evidence." It means that in civil cases juries can find for people filing lawsuits if the evidence points even slightly their way -- "if the football is just over the 50-yard line," says Victoria North, a criminal law professor at the University of Maryland law school.

In contrast, juries in criminal cases can convict only if they're persuaded "without reservation, without hesitation," says Fred Bennett, a law professor and defense lawyer.

Jury rules also differ. In criminal cases, it take a unanimous vote to convict. In civil cases, some states don't require all jurors to agree. California says a jury of 12 can reach a verdict with as many as three dissenting votes.

In the criminal trial, Simpson's lawyers persuaded him not to testify. Can he choose not to be a witness in the civil case?

No, unless he's willing to risk being jailed for contempt of court.

Criminal defendants routinely pass up the chance to testify at their trials, citing their constitutional right against self-incrimination.

It's such a powerful protection, in fact, that juries in criminal trials are warned not to draw conclusions about a defendant's guilt based on a decision not to testify.

In a civil case, there are no such protections. If called, defendants are required to testify under oath, and can be dealt with severely by judges if they refuse.

In Simpson's situation, he has no apparent reason to resist. No matter what's said at this trial -- even if Simpson confessed to murder on the witness stand -- he could not be tried for it. Remember, that's double jeopardy.

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