Many of you have probably seen the series on FX, The People v. O.J. Simpson: American Crime Story. It is running for 10 episodes. The relevance of the series to personal injury law brings to mind something I have spoken about before which, if I may say, bears repeating.
We all know the upshot of that trial. That very long criminal trial, lasting from January until October of 1995, resulted in O.J. Simpson’s acquittal. What is less well known is that two years later, in 1997, the Goldman family – Ronald Goldman was one of the double murder victims – brought a civil lawsuit against O.J. Simpson for Ron Goldman’s death. I recall at the time that many non-lawyers wondered why it was that the Goldman family could bring a civil lawsuit. Hadn’t everything been adjudicated when O.J. was found not guilty? The standard that is used in criminal as opposed to civil cases explains why a civil lawsuit was possible.
The standard in a criminal case is beyond a reasonable doubt, or 90% as was quantified for me years ago, that the criminal defendant is guilty. But the standard in a civil case is the preponderance of the evidence. Some have said that that is just a little bit more probable than not, or a little bit more proven than not proven. Thus, a criminal acquittal will not stop, or preclude, a civil case by the injured parties.
Let’s take the situation where the other side or the reverse has happened. I am speaking about a criminal conviction. Well that is an easy situation. The criminal conviction results in an easy civil case because the facts are usually identical between the criminal case and the subsequent civil case. With a criminal conviction, the plaintiff would not even re-litigate the matter as, after all, the defendant was convicted. Again, this is the flip side of the O.J. situation. The theory is that the defendant was convicted, and given that the higher standard of, say, 90%, was met we can clearly establish the preponderance standard in the subsequent civil case. Please recall that we characterized the civil proof standard at around 51% for winning that case. If the prosecution has met the 90% standard then the civil plaintiff has automatically met the 51% standard. You then have issue preclusion or res judicata on the facts of the later civil case. The effect is that the civil case will essentially be one of calculating damages, and not on liability.
One other item, and you may know that I have an interest in evidence, is what about the facts or the testimony that has come up in the prior criminal case? This is an evidentiary question and not one of substantive law. Can it be used in the subsequent civil case? In the limited amount space we have here, the answer is that prior testimony and statements made in a prior trial are admissible in the later civil case. They can be used for impeachment or even as part of the plaintiff’s case when that case is being presented. Thus, if the defendant testified, something that is far from clear in a criminal case, his/her testimony would be admissible in a later civil case. In fact, much of the testimony and many of the facts that were put forth in the prior criminal case, regardless of how that verdict went, would be used in a subsequent civil case. Of course, it would not be confined to the defendant’s testimony but would include most, if not all of the testimony, that was previously heard.
As most of you know the Goldmans prevailed in the civil suit and received a judgment in the tens of millions. However, without insurance covering the defendant, much of the award went uncollected. As I recall, they pursued Simpson’s assets in Florida but some things, such as his NFL pension, were exempt from the judgment creditor, the plaintiff.
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