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

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 are dealing with, and that means taking the common-sense step of putting defendants' past brushes with the law on the table.

Today, a jury may learn of a defendant's past convictions under some limited circumstances: If the defendant himself testifies and the information is used to impeach his credibility, or if it is introduced for one of several other narrow purposes permitted by state law. Ironically, the jurors may also be told about past convictions if the defendant wants them to know. For example, some lawmakers worry that a defendant in a state with a "three strikes, you're out" law might introduce his own prior convictions to deter a sympathetic jury from convicting him for a third time, thereby sending him to jail for life.

When jurors know the entire picture, they do place an emphasis on criminal records. In a study conducted by leading jury researchers Valerie Hans and Anthony Doob, 30 simulated juries were asked to decide a hypothetical burglary case: A woman's house was broken into and $200 was stolen. A short time later, a man was found in the neighborhood with $200 in his glove compartment. The defendant's girlfriend, however, testified in court that she was with him at the time the crime occurred. Half were told of the defendant's criminal record, which included several burglary convictions, and half were not. Of the panels left in the dark, not one convicted. But among the better informed juries, the conviction rate was nearly one-half.

Proponents of withholding criminal records from jurors argue that a record is irrelevant. Just because a person robbed one bank doesn't mean he robbed a second. This is true enough, but to say that the information is useless ignores the conclusion of many criminologists that someone who is convicted of a crime is very, very likely to commit a second. According to a 1991 Justice Department study, over 60 percent of criminals released from prison will be rearrested for a felony or a serious misdemeanor. Even that high a rate is dwarfed by the recidivism rates of certain kinds of criminals, such as sex offenders. And those are only the ones who get caught. Unfortunately, courtroom procedure swerves away from this point where science and common sense agree, sometimes with tragic consequences.

Take the 1992 case of Colin James Evans, the proprietor of a child-care center for impoverished children in England, who was charged with child molestation. Molestation is a notoriously difficult crime to prove, and most cases come down to whom the jury trusts more, the child (or the child's parents) or the defendant. The defense argued that Evans was in fact a good-hearted man who chose his profession because he cared for the welfare of children. Why would he harm them? England is one of the only countries in Europe with the same restrictions on evidence as our own. Consequently, the jury did not know that Evans had already been convicted several times of the same crime. As a result of their ignorance, the jury acquitted Evans. Not long afterward, he struck again - only this time he killed the boy after molesting him.

The Jury is Out. . . Of The Loop

Letting jurors in on a defendant's past is not as revolutionary an idea as it might seem. Already, despite concern about the highly prejudicial effect and relevance of criminal records, most states permit judges, but not juries, to be told about defendants' and witnesses' prior convictions, arrests, and even mere accusations of wrongdoing. When the judge is deciding a case without a jury, the law shows greater confidence in the judge's ability to separate relevance from prejudice. It is only juries that are thought unable to make the distinction.

Juries were not always treated with such lack of respect. When first established in this country, the jury was viewed as an active participant in the trial, knowledgeable about the parties and facts involved in the case. It represented the common sense of its community. Beginning in the late 19th century, however, many courts adopted the view that juries were blank slates, to be written on by judges and attorneys. Juries increasingly became observers rather than participants.

This view is more prevalent today than ever before. Attorneys hire jury consultants and test their well-rehearsed cases in focus groups, trying to determine exactly what mix of jurors will make the most favorable audience. Would-be jurors are summoned, often by the thousands in high-profile cases, and questioned about their families, jobs, hobbies, even their religious beliefs. In the case of two men accused of beating truck driver Reginald Denny during the 1992 Los Angeles riots, the judge required potential jurors to complete a 45-page questionnaire containing 116 questions. The defendants knew more about the jury than the jury knew about the defendants.

We must stop denying jurors the facts necessary to make informed decisions. The goal must be to give jurors all the relevant information and trust their ability to come to the right decision. With restrictions on what information the jury can hear, this is at times impossible, and jurors' frustrations are evident. In a 1992 Virginia case involving a woman charged with drunk driving, one juror, Yvonne Zecca, reported that although a majority of jurors felt the defendant was guilty, the panel voted to acquit due to a lack of evidence. After the foreman had delivered the verdict, the bailiff told the jurors that the defendant had been arrested previously for drunk driving and was facing trial on a separate charge of refusing to take a breathalyzer test. "I was outraged," Zecca said. "It was a waste of time to go through the whole charade of a trial but not tell the jury all of the relevant information."

Courts should eliminate the rules that keep such information from the jury. We rely on juries to decide guilt or innocence. We rely on them to decide extraordinarily complicated and technical civil suits. We rely on juries to evaluate the relevance and significance of evidence. We rely on juries to follow judges' instructions to "forget" what they have read or seen in the media or what they have just heard in the courtroom.

Why do we believe juries are capable of performing all of these tasks, but are not able to evaluate evidence about defendants' past conduct? If such evidence is inherently too prejudicial for such rational scrutiny, then why do we give it to judges? If we just don't trust juries, then we must rethink our dependence on them to decide guilt or innocence and to sentence convicted criminals - even, in capital cases, to take their lives. In short, either we have faith in the system of a jury of one's peers or we don't.

Fortunately, in some states, change is underway. California voters passed a "Rights to Truth in Evidence" proposition amending the state constitution to permit juries to have access to information about defendants' character and criminal records. And this spring, Virginia enacted a law allowing jurors to consider a defendant's criminal history, including any crimes committed as a juvenile, before they vote to sentence.

These are important and long overdue moves. Blind justice is not served by a blindfolded jury. What the jury doesn't know can hurt us all.
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Title Annotation:using criminal's past as evidence
Author:Cate, Fred H.
Publication:Washington Monthly
Date:Sep 1, 1994
Previous Article:Washington's nice problem.
Next Article:Guerrillas in the mist.

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