There has been far too much self-righteous tut-tutting in Australia over the O. J. Simpson case. “”We would never do that here. Our courts wouldn’t allow it. They would bring the media into line with “proceedings’ for contempt so that justice could be dispensed properly. Tut, tut, tut.” The Americans are fortunate to have the Simpson case and a law which permits the media to give the public blow-by-blow descriptions.
As a result the O. J. Simpson case may turn out to be one of the most effective pieces of public education in America’s history. And the publicity may change the way courts work for the better. In Australia, people have little idea about what goes on in court, even though courts are open to the public. Educators and the media may present hypotheticals or in-depth analysis after the event, but there is nothing like live drama to excite public interest. And the television ratings tell us that they are interested. There interest maybe prurient, but if that results in a little education about how the legal system works, all to the good. It will be even better if the case results in some Australians learning about the common law _ its defects and merits _ because they will not get a similar opportunity here. What are we seeing in the Simpson case? For a start, we are not seeing a search for the truth. We are seeing a contest. That contest is being fought on the evidence. But the evidence is not the sort of evidence that you or I might regard as pertinent to drawing conclusions about something. Rather it is only the evidence permitted under common-law rules.
It is usually restricted to direct evidence of what the witness saw plus the opinions of experts. Ordinary matters that you and I might use to assess guilt, with varying degrees of weight, are excluded _ such as whether he has committed other acts of violence whether he remains silent or has some reasonable alternative explanation for what happened. The trouble with the common-law, adversary system is that arguments over evidence, like most things in the common law, are resolved in an absolute way. Either the evidence goes in or it does not. In civil law it virtually all goes in with appropriate guidance by the judge working with the jury as they deliberate as to what weight each piece of evidence should carry. The aim of every good criminal defence is to get enough pieces of evidence excluded so that the jury cannot get the full picture. In the Simpson case, for example, the defence did its best to exclude the DNA evidence and evidence that Simpson was a violent man who beat his wife up.
The common-law generally treats jurors like morons and keeps evidence from them just in case it might be too prejudicial, instead of allowing it in and warning about how much weight to give it and how to balance it against other evidence. In the Simpson case, however, the glare of publicity might have an affect on the conduct of the case. The public’s view of the legal system would be harmed if they saw a verdict plainly out of keeping of their quite large knowledge of the case. This can often happen when artful lawyers are successful in getting key peices of evidence excluded altogether on some technical ground. In the Simpson circumstances it might be tempting for a judge to allow more evidence so that the public and the jury have a similar picture. That might not be such a bad thing, but it could be dangerous if _ as here _ the judge is not on hand during deliberations to give advice on the wieght. The public is also being educated about another element of the common-law system _ that is the conduct of the case is largely left to the parties.
The judge does not call witnesses nor as a general rule ask questions of them. The result is a process geared to winning rather than the truth and one that favours the rich who can afford to drag the case on and hire lawyers to conduct the case to muddy the waters in whatever way possible. At present the public knows of the cost and delay in our legal system and its record of not always getting it right. The trouble is they know little of why that is the case. The Simpson trial might give them that insight, even if only as an incidental spin-off of a quest for prurient entertainment.