Evidence Admission in the OJ Trial

Hello all,

I’m pretty late to the party but I watched that OJ trial mini-series(The People v. O.J Simpson) and it got me curious about some of the way evidence is admitted(not sure this is the right word). As a note, all of my knowledge about the OJ trial is from this mini-series so please inform me if I’m getting something wrong.

In the trial there is an officer named Mark Fuhrman who initially is a prosecution witness who found a bunch of the initial evidence. Mark Fuhrman testifies how he found the scene and where he found evidence. Later on some tapes are found where, along with many other things, Mark Fuhrman states that he has planted evidence on black people in the past.

The judge does not allow this part of the tapes to be played for the jury. Why not? It seems pertinent to the trial. The judge does allow a small part which refutes Mark Fuhrman’s earlier sworn testimony that he has never used a certain racial slur. That makes sense as he made that statement and then the tapes refute it. But Mark Fuhrman also claims to have found evidence that incriminates OJ. Part of the defense’s’ argument is that OJ was framed by the police. Would it not then make sense to allow the part of the tapes which the person who found the evidence claims to have planted evidence in the past to be played?

I believe the idea is that we don’t want to try to discredit witnesses by attacking their character in unrelated ways. Such as if the officer had instead been a drug user or animal abuser. Those would be completely unrelated. But self-admitting to planting evidence on black suspects would seem to be related to me.

Surely there is some legal reason this makes sense but I don’t understand it yet.

To try to prevent assumptions, I’m not angling to say it should have been admitted and it would have exonerated OJ. I’m merely curious why it wasn’t.

You can read the judge’s own reasoning here.

Fuhrman does not states he planted evidence on black people on the tapes. He talks about beating suspects and other criminal acts but not planting evidence.

To expound upon that somewhat, and based on a quick read, it appears that the answer to the OP’s question is that, in order to impeach Furhman with an inference that he had previously planted evidence, you first have to show that he did so in this case. And the judge felt that this was not established. (I’d note, based on my own recollection, that Furhman was something like the 17th officer to arrive on the scene of the crime, about 2 hours after police first arrived, so in order for him to have found and removed the glove so he could plant it elsewhere, he would have had to have found it at Nicole’s home after about 15 other police officers missed finding it).

Thank you for that link. So the reasoning is the defense doesn’t have evidence that Mark Fuhrman tampered or planted any evidence so the fact the he’s admitted to doing something similar in the past isn’t allowed in.

Is this common? For example if you had a tape of a witness bragging about lying in sworn testimony to try to convict/acquit someone in a previous trial and now that person is testifying again, would you be allowed to play that tape? It seems like no unless you actually have some evidence that they are lying now.

Is the idea that this information(the witness admitting to tampering with evidence or lying previously) will sway the jury’s opinion too much and not allow them to make an impartial view of the witness’s testimony?

See evidence rule 608(b)

And 404(b)

You’re correct he doesn’t talk about planting evidence. I must have misremembered. But he does talk about manufacturing reasons for arresting people, falsifying police reports, and covering up police misconduct. I understand these are not the same as framing someone but taken together would make me more skeptical of his findings. As a layperson I would not see it a much of a jump to think he planted or tampered with evidence. But I believe Ito addresses this and disagrees with me.

The actual claim is that he manufactured probable cause.

  1. Manufacturing probable cause for arrest:
    The discussion involves detaining someone who does not belong in the area and later being able to justify the arrest: "If I was pushed into saying why I did it, I’d say suspicion of burglary. I’d be able to correlate exactly what I said into a reasonable probable cause for arrest. This case does not involve an arrest made by Fuhrman. The incident does not speak to racial animosity. It is not relevant. The Evidence Code Section 350 objection is sustained. Presentation of this incident would require the undue expenditure of the court’s time given its negligible probative value. The Evidence Code Section 352 objection is sustained.

Well that makes it much more clear. As a side note those are high rule numbers! I can’t imagine trying to remember all of them.

Judge Ito addresses each instance the defense wants to use individually.

For some instances of misconduct, Ito seems to discount that they actually happened.

With other scenarios, the Judge simply notes that it is not relevant to the facts at issue.

Moreover, the judge repeatedly worries about the use of the court’s time to litigate such issues

The problem with allowing any evidence that tends to discredit a witness is the risk that it would devolve into a ‘mini trial’ (i.e., the parties end up litigating whether Furhman actually did the thing that has been mentioned), which goes so far astray from the controversy at issue - Did OJ kill these people - that it wastes time and potentially confuses the jury for no real benefit in answering that ultimate question.

Consider that if the court had allowed all of these statements/conversations in, the trial would have required witnesses to discuss whether Furhman was ‘making up stories’ for a screenwriter who was paying him or actually recounting real events, which would potentially require people to come in and actually verify the stories or provide further context, which could become hugely unwieldly.

Thus, the court felt that it was important to narrow any incident to something relevant to the trial - in this case, that was Furhman’s frequent and disparaging use of the word ‘nigger’ after testifying that he hadn’t used the word in the last 10 years.

(The opposite option is to try and let any prior bad conduct in that might go to the witness’ truthfulness. But Imagine, for example, that the defense wants to allege that Furhman cheats on his wife; we could have an entire ‘trial’ over the issue of infidelity - with testimony from friends and arguments about where he was at certain times and places - simply to establish that he’s a liar, but which have nothing to do with the issue of OJ’s actions. Now imagine doing this for each witness called).

The numbers go by hundreds, so rule 404(b) doesn’t mean that there were 403 rules before that. It’s more like, section 4 (Relevancy), part 4 (Character Evidence), Rule b (other bad acts).

Note, by the way, that there are a number of exceptions under that rule, so while the general standard is that you shouldn’t use ‘prior bad conduct’ to prove a case this time (e.g. just because a person robbed that bank doesn’t mean he robbed this one), it is common for lawyers to argue over whether an exception applies (i.e. you can use the prior act to establish proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or some other lawful purpose…meaning, I can’t use your prior bank robbery to show that you are a bad guy who robs banks, but I may be able to use it to show that you always rob banks by handing a note to the teller, brandishing a gun, and then locking everybody in the vault before you leave).

(And, as long as we are talking about rules of evidence, besides the ones mentioned, there is also 403 - The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.’)

Also, California state court doesn’t use the same rules we’ve been talking about. They have similar concepts, organized differently.

Thank you for the clarification Moriarty.

That does make a lot of sense. This was the main difference that I wasn’t grasping before.

I agree with all prior posters. To follow up, the tape in your hypothetical would almost certainly come in under 404(b).

Further, I think if you had a clear recording (no dispute that it was for a screenplay) about Fuhrman planting evidence in prior cases, that would normally come in as well.

As others mentioned, however, in this case, Fuhrman had no opportunity to plant evidence. He was around other people at the murder scene and travelled with other detectives to O.J.'s house. Yes, he found the glove by himself, but Judge Ito decided that a fanciful tale of him hiding the glove when surrounded by all of these people was too much.

The Rules of Evidence have a lot of weasel words and what a judge in a criminal trial tries to do is to be fair to each side. You can hammer a witness when it follows the rules, but you cannot just go out in the weeds and hammer him for things that would not change a fact of consequence in the case.

For that reason, Ito really should not have allowed any part of the tapes into evidence. In another case where Fuhrman was unsupervised? Absolutely and a hundred times over, but not in this case.

Yes, the defense’s argument was ludicrous. I’m not suggesting Furman did plant evidence. I just get a little curious about the minutiae of court cases. I always hate how media about court cases don’t talk about it much.

In this case the tapes directly contradict the witness testimony. Does this not matter because whether he’s lying or not doesn’t really matter to the case? I can see that it’s a little bit of a weird situation. I guess you don’t want one side to ask random questions so that they can bring evidence in just to refute that witness’s statement. “Earlier you said you hate apples but here’s a picture of you eating and apple. Oh and you’re kicking a dog but that parts not important. But that does really make you look bad.” kind of thing.

On the other hand as a laymen it seems bad to allow a witness to lie and not correct it for the jury.

The judge is the gatekeeper of the evidence for the jury. The Rules of Evidence specify what kind of evidence can come in because not every question is relevant to the jury’s consideration.

Certainly not all lies are relevant to the case. Everyone lies. If he had cheated on his wife but told her he was faithful, you would agree that shouldn’t be something that the defense could bring up as a “he lied to his wife, so maybe he lied to you” argument to the jury?

Let’s assume for purposes of argument that Mark Fuhrman was a KKK member, and you could provide tape after tape of him talking about niggers doing this or that. Let’s assume that he said the same thing as he did in real life to Bailey that he never used that word in the prior 10 years.

As a judge, would you believe that lie is relevant to the issue for the jury of whether O.J. is guilty? Or narrower, do you believe that lie is relevant to Fuhrman’s description of how he found the evidence, given that he was around others when he was doing his investigation? Given the undisputed facts, what could David Duke (in place of Mark Fuhrman) have done to frame O.J? And if the undisputed facts show that framing was impossible, then what does his racial animus have anything to do with anything?

Or does it simply (IMHO it did) inflame the passions of the jury and allow them to put aside their fact finding and acquit on emotion? That’s what the rules try to prevent.

Point well taken. Given the extreme unlikely hood Fuhrman could have done anything to tamper with the evidence his personal feelings don’t matter and have no bearing on the case.

It does make me wonder if Ito made a mistake allowing the question at all. Why allow a question that if the person lies this then shouldn’t be revealed to the jury as it’s not pertinent?