August 3, 2017
Twenty years have passed since the civil conviction of former American football player and celebrity O. J. Simpson, declared civilly liable for the death of his ex-wife Nicole Brown Simpson and Ron Goldman, and his name is once again in the news.
Following a Nevada parole board recently granting him parole and release from prison next October, for the 2007 kidnapping and armed robbery for which he was sentenced to 33 years in prison, and the recent airing on a popular digital platform of the series about the criminal trial titled "The People v. O. J. Simpson: American Crime Story," it is interesting to analyze the reasons why the athlete was convicted in civil jurisdiction for acts he had been acquitted of by a jury two years earlier.
I. Introduction.
As readers will recall, in the criminal trial O. J. Simpson was found not guilty by a jury of the murders of Nicole Brown Simpson and Ron Goldman on October 3, 1995, after the televised "trial of the century," in which the athlete's defense team played a prominent role, dubbed the "dream team," led by attorneys Robert Shapiro and Johnnie Cochran.
After the acquittal, Ron Goldman's parents filed a wrongful death civil lawsuit against O. J. Simpson, who was found liable on February 4, 1997 by a civil jury - which notably had no African American members, unlike the criminal trial - and ordered to pay $33.5 million to the victims' families in compensatory and punitive damages for the deaths of Nicole Brown Simpson and Ron Goldman.
The purpose of this article is to analyze how he could be acquitted in criminal jurisdiction for murder charges, yet convicted in civil court for the same acts, explaining the differences with our country.
II. Res Judicata in the US.
One of the fundamental rights under the well-known Fifth Amendment of the United States Constitution, alongside the right against self-incrimination, the right to a grand jury, and the right to due process, is the protection against being tried twice for the same offense - "double jeopardy" - which is akin to what we call res judicata in Spain.
Res judicata in both the US and Spain is a procedural principle that prevents a person from being retried for the same facts once there is already a final judicial decision, meaning that an accused cannot be tried again for an offense of which they have been acquitted.
However, exceptions to this general rule in the US include:
- When the accused is tried twice for the same offense in separate federal and state actions.
- When the accused requests a mistrial through an appeal and the trial is declared null - a "mistrial" - meaning the accused, through their legal representation, waives the double jeopardy protection and requests a retrial for the same offense.
- When the accused can be tried for the same facts in both civil and criminal jurisdictions.
This exception to the general rule is central to this article and was the procedural tool used by the victims' families in O. J. Simpson's case to litigate directly against him, seen by some as correcting the errors of the Public Prosecutor's Office, led by prosecutor Marcia Clark, since in the US, private prosecution is not part of the criminal process - meaning the only party with the authority to prosecute is the State through the Public Prosecutor's Office, unlike in Spain where parties can act as private or popular prosecutors.
This was the case with O. J. Simpson, where the civil jury found the athlete guilty of the death of his ex-partner and her companion, sentencing him to compensate for the harm caused by his actions, despite being acquitted in the criminal trial due to lack of incriminating evidence, with the defense's strategy successfully portraying the trial as a case of racial discrimination.
There were significant differences between the two trials, beyond purely substantive and procedural differences between the two proceedings: the absence of the famous "dream team" defense, or the non-participation in the civil trial of witness Mark Fuhrman, a detective with the Los Angeles Police Department who had been involved in the investigation of the crime, a testimony requested by the Public Prosecutor's Office that ultimately benefited O. J. in the criminal case by revealing the detective's marked racist and far-right character, which could have been crucial in determining O. J.'s fate.
However, how could O. J. be acquitted in criminal court and be held civilly liable two years later?
Despite the apparent contradiction to the reader in these two outcomes, in the US, it is explained by the nature of both proceedings.
In criminal jurisdiction, the jury must unanimously find beyond a reasonable doubt that the accused is guilty, whereas civil jurisdiction is less demanding in terms of evidence, requiring that the preponderance of the evidence points to guilt, but it allows for doubts that are inadmissible in criminal proceedings.
Additionally, the charge of first-degree murder required proving that O. J. acted deliberately and with premeditation, whereas for the charge of wrongful death in California, only proving negligent and intentional conduct resulting in death was required.
III. Possibility of civil and criminal proceedings in Spain.
There is no doubt that O. J. Simpson's civil case clashes with the Spanish legal tradition, where intentional murder or manslaughter is not usually subsequently tried in civil proceedings.
However, it should be noted that Article 116 of the Criminal Procedure Law states regarding res judicata: "The extinction of the criminal action does not imply the extinction of the civil action, unless it is declared by final judgment that the fact on which the civil action could have been based did not exist."
In this regard, the First Chamber of the Supreme Court rules, citing, for example, Judgment No. 1108/2006 of October 30, 2006, which states that:
"The jurisprudential doctrine has been declaring that the criminal acquittal judgment does not have the res judicata effect on the civil jurisdiction - with the prejudicial or positive effect of res judicata - unless it declares the non-existence of the fact. Therefore, it must be a judgment that acquits the accused, or a ruling that orders the final or free dismissal equivalent to a final judgment; and it is required that it be declared that the "fact" that individualizes the "causa petendi" of the civil action - therefore, the one constituting the illegal act or that underpins the authorship or participation - did not exist, without it being sufficient that the acquittal is based on lack of evidence of existence, as the non-existence of the fact and uncertainty about its existence are not legally comparable."
Therefore, if in Spain a criminal judgment acquits due to the absence of the criminality of the act, lack of evidence, or does not declare the non-existence of the fact, the matter could be resolved in a subsequent civil proceeding.
Despite this, O. J. Simpson's case in Spain could never have resulted in a conviction in a civil proceeding, as the very nature of reckless homicide under Article 142 of the Penal Code excludes intentional commission of the subjective type, unlike in American "wrongful death," limiting it to reckless or less serious negligent commission resulting in death, reckless commission that could never have occurred in these deaths, given that Nicole Brown Simpson and Ron Goldman were brutally stabbed, an aspect that automatically rules out reckless commission.
In forensic practice in our country's criminal law, it is common for cases involving reckless homicide or injury, resulting in acquittals, to leave open the civil route to claim compensation for non-contractual civil liability under Article 1902 of the Civil Code.
A very common case involves homicides or injuries due to professional negligence, for example, arising from medical acts, where the professional is acquitted for their action or omission not constituting criminally punishable negligence, but may be held civilly liable, often due to diagnostic errors or lack of information, elements that alone do not usually constitute a criminal offense but are sufficient to prove professional malpractice.
In conclusion, the law and procedural system in the United States are different from those in Spain, which is why O. J. Simpson could be held civilly liable, although our criminal procedural law also allows for recourse to a subsequent civil proceeding in certain cases.
Ignacio Montoro Iturbe-Ormaeche | Specialist in Economic Criminal Law and Professional Civil Liability
