What the jury doesn't know...could hurt you.

Author:Minow, Newton N.
Position:Using criminal's past as evidence

The moment the Los Angeles Police Department announced that it had issued a warrant for O.J. Simpson's arrest, Americans began playing juror. Spontaneous juries sprang up around coffee machines, on barstools, and in grocery lines everywhere. Scrutinizing the evidence supplied by the media, people began to ask themselves the questions jurors ask: How credible is Simpson's alibi? What does it mean that they can't find the murder weapon? How did the bloody glove end up in Simpson's yard?

In this blizzard of detail, one piece of evidence inevitably held more weight than all the others: Simpson was a wife-abuser. On eight occasions in past years, the public was told, police had been called to the Simpson household to investigate charges of domestic violence, and the one time Simpson was arrested, he was convicted. Followers of the case got a gruesomely intimate portrait of the Simpsons' relationship when police released the transcript of a 911 call Nicole Brown Simpson made as her ex-husband raged at the door of her house. In the country's midsummer obsession with O.J., this history of violence didn't prove his guilt, but it did show that he was a violent man, capable of much more than his movie star good looks and mile-wide smile might suggest.

Experts say if Simpson did indeed commit the murders, the case would be more typical than you might think. Three out of 10 murdered women are killed by their husbands or boyfriends, and more often than not, the murder comes after months and years of increasingly violent abuse. You would think that Simpson's past record would play a significant role in the prosecution's case.

But you would be wrong. In Judge Ito's California court, where Simpson will be tried, and in virtually every other court in the country, a defendant's criminal record is inadmissible as evidence. Any peep about Simpson's history from the prosecutor could force the judge to declare a mistrial and send the whole process back to square one. Moreover, any potential juror who has prior knowledge of Simpson's record will be excused from the case. The reason is not that such information is thought to be beside the point. In fact, in 1948, Justice Jackson wrote for the Supreme Court that evidence about defendants' character, including prior convictions, is "not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury. . . ." But what's wrong with that? It's time to let juries know exactly who they...

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