How O.J. was not in double jeopardy

Double jeopardy isn't just a round on a highbrow game show, it's also a legal term for being held to answer in court twice for the same criminal act.

O. J. Simpson, who was found not guilty in the criminal trial, but was then found liable (responsible) in the civil trial, was quoted by Linda Deutsch of the Associated Press today as saying, "If you're found not guilty, how can you be found responsible? I'd love to hear how that's not double jeopardy." My cousin asked me more or less the same question at the time, although from a different perspective: "Doesn't that mean that he was guilty? If he did it, why wasn't he convicted?"

Well, let me tell you how it's not double jeopardy. The key to the discussion is a concept called standard of proof. In a criminal trial, the jury must find in the defendant's favor unless she is guilty beyond a reasonable doubt; in a civil trial, the jury must find for the defendant unless a preponderance of the evidence indicates that the damage was her responsibility.

I served on a civil jury here in San Francisco a couple of years ago, in the court of Judge Alex Saldamando. The judge explained to us the difference in the two standards of proof. In a civil trial, if you put the evidence for the plaintiff and the evidence for the defendant on a scale and they exactly balance, then the defendant wins. However, if you add a tiny feather to the plaintiff's side, that tips the balance: there is more evidence for the plaintiff than for the defendant, so you find for the plaintiff.

In other words, in a civil trial, it's an even race, except that an exact tie goes to the defendant. Think of it like a football game, only the defendant wins on a tie score. In a criminal trial, though, the prosecution can't allow even a field goal from the defense, or the defendant wins. It doesn't matter if the score is 77 to 3, it's still a notch in the lose column for the prosecution. They have to not only score more runs than the defendant, but the prosecution has to pitch a no-hitter. (Sorry, O.J., sports metaphors aren't my natural habitat.)

What happened to you, Mr. Simpson, is quite simply that the criminal jury found that they had some reasonable doubt of the allegation that you directly caused the deaths of two people. In other words, they did not say "He did not do it!," they said "We are not certain that he did it." It is entirely possible that some jurors were certain you didn't, others thought you probably didn't, and others thought you probably did.

The civil jury later weighed the evidence by a very different standard. The question they were called to answer was very simply, Is it more likely or more unlikely that O.J. Simpson caused the deaths of two people? Their answer was "more likely."

From all the evidence I've seen, it appears to me that both verdicts were legally correct, but whatever they were, they did not by any means constitute "double jeopardy." If they did, it would be impossible to sue a criminal for the damage she caused by the crime.

What comes much closer to double jeopardy is the filing of federal criminal charges against someone who has been acquitted on state criminal charges. For instance, a police officer who is not convicted of assault may be tried a second time for violating the suspect's federal civil rights. That process is only invoked in a few cases where public sentiment is very strong that the initial acquittal was a miscarriage of justice, but it does tread on the thin ice of giving someone a second criminal trial for the same overt act.