The O.J. Case: How Not to Conduct a Trial
THE O.J. Simpson trial was supposed to be high theater. It was supposed to be an example of the best lawyering money can buy. And, for me, it was supposed to be the perfect teaching vehicle. On all three counts, so far it has been a bust.
I teach evidence, criminal law, and advanced criminal procedure in a law school. I used to teach trial advocacy. Law students these days never seem to have the time or the inclination to actually go to court and see the live action. So I thought that watching the trial on television was potentially a lot more instructive than, say, watching ''L.A. Law.''
The stage was beautifully set. It would be a classic head-to-head confrontation between the finest big-city prosecutors and several of the country's best-known defense lawyers.
The evidence was keyed to the most sophisticated forensic techniques known; 21st-century science would come to the courtroom. The exhibits would be breathtaking: computer animation, state-of-the-art photography and imaging, and charts and diagrams to stretch the imagination. The defendant was an American so known and admired that, for once, presumption of innocence might actually mean something.
Like a sports fan on Super Bowl Sunday, I was filled with excitement as I rolled the TV monitor into the classroom so that we could watch the opening statements. No abstract, theoretical discussions today, I thought, just front-row experience of the law in action. The opening statements would be followed by incisive critique and brainstorming about strategies. Law school doesn't get any better than this.
What a disappointment. What a bore. What a perversion of the laws of evidence and procedure. Never again will I be able to teach with a straight face that the American criminal defendant is not tried on his or her character but on deeds alone.
In his overlong, unrefined, and stultifying opening statement, prosecutor Christopher Darden did nothing but talk about Mr. Simpson's character -- or lack thereof. ''Character'' is normally inadmissible unless the defendant first brings it up and even then it's restricted in its scope and form. Sometimes character evidence parades as something else, like evidence of motive or intent. But judges are not easily fooled, and any attempt to portray character as something other than what it is will be subject to close scrutiny. That's what we teach.
Forget that class. We can also forget the class where we teach the importance of weighing probative value against prejudice to determine relevance. Not with this judge. He lets everything in, and he lets everybody talk about everything as much as they want. He lets them talk about dreams that other people told them about. He lets them give their personal opinions. He lets them talk about every statement, every party, every cocktail.
Forget the hearsay rule. Evidence teachers typically spend several weeks teaching the hearsay rule and all its exceptions. You would never know that in Judge Lance Ito's courtroom. Hearsay objections are few. When they are made, nobody seems to know how to respond to them.
Some lawyers know that if a statement is offered to show state of mind, it's not hearsay. The O.J. lawyers don't seem to know that. When Mr. Darden argued that some hearsay was admissible to show state of mind, I sighed with relief. When he continued on to say it showed the state of mind of Denise Brown, sister of Nichole, even Judge Ito managed to say ''irrelevant.''
I am now making use of the case to teach by negative example. Whether Simpson is guilty or not, the rest of the cast is clearly guilty of ruining the best opportunity in history to showcase the American legal system: prosecutors who not only bore but lead their own witnesses throughout direct examination (''Let the witness tell the story'' is the refrain in law school trial-advocacy classes); defense lawyers who violate cardinal rules on cross-examination like ''Never ask a 'why' question'' or ''Avoid the one question too many''; a judge who takes all of one day to decide whether a witness will be available later in the trial, makes a decision to let her testify out of order, and then spends most of another day changing his mind. This trial may never be over.
Not to mention the circus-like behavior. How can we teach reasonable, civil behavior in the courtroom when prosecutor Marcia Clark is ''appalled'' and ''disgusted'' by practically everything the defense does? How can we convince students that the truth-seeking process requires mutual disclosure of evidence when the defense has already been chastised repeatedly for failure to turn over the names or statements of witnesses?
Law professors aren't hopelessly naive. Many of us were trial lawyers ourselves. We knew there would be lots of Hollywood soap opera. We knew that much of the testimony would be tedious. We knew that grandstanding lawyers would posture their way through most of the legal arguments. We weren't expecting any triple plays or long touchdown runs.
But I, for one, was hoping for a glimpse of Clarence Darrow or William Jennings Bryan. I might as well have been watching Colin Ferguson.