What the jury doesn't know…could hurt you - using criminal's past as evidence

Washington Monthly, Sept, 1994 by Newton N. Minow, Fred H. Cate

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.