In this article, I shall outline the similarities and differences in legal practices used in trials conducted in recent times, using the famous trial of OJ Simpson in 1995 as a case study, and comparing that to the trial of the Roman politician, Milo, in 52 BC, as documented by Cicero. Perhaps the most intriguing aspects of these trials are the respective outcomes, both based off probability rather than a definitive result from evidence. It is striking that despite the forensics of the modern era, the trial of OJ Simpson relied heavily on probability, as was the case with Milo’s trial. Both trials were crucially dependent on testimonies, and thus the concept of ‘reasonable doubt’, a key aspect of a legal “judo defense”, had unprecedented effects on the outcomes of the trials.
Given Rome’s lack of a definitive constitution, Roman laws were established upon precedents and mos maiorum(the custom of their ancestors), which meant Roman laws were more open to personal interpretation than the universally accepted laws and legal systems in the world today. Milo was ultimately sentenced to exile following his conviction for the death of Clodius. In Ancient Rome, exile was perceived as comparable to a death penalty, as his removal from Rome constituted his separation from the political and financial success of the city. Milo’s conviction hinged not only on the testimonies which supported the prosecution’s case, but also on the political repercussions of his exile. Julius Caesar and Pompey, amongst other senators, stood to make political gains following Milo’s exile, as they sought to capitalise on the social divisions caused by the gang violence between the factions of Milo and Clodius. This conveys how the Roman justice system could be heavily influenced by politics, especially by individuals seeking to further their own careers, and thus the lawyers in the Ancient World, as contemporary lawyers do now, had to be creative to win over juries.
The 'Judo Defense'
In his book on the trial of OJ Simpson, Jeffrey Toobin includes a scene in which he discusses Furhamn’s police records with Shapiro in a personal interview. In this direct insight into the defence’s tactics, Toobin notes how the defence attempted a “judo defense”, an attempt ‘to turn the strength of the prosecution’s case against the prosecution.’ As is well known, the incorporation of scientific analysis, such as the use of DNA evidence, was seen as integral to the prosecution’s case against OJ Simpson. The defence’s questions around the collection of scientific samples further enhanced their integration of this “judo defense” tactic, which was a crucial component in their desire to highlight the ‘reasonable doubt’ in the scientific analysis of Marcia Clark’s prosecution. Notably, the questions surrounding the evidence, such as the gloves, were crucial to Simpson’s acquittal for murder.
Cicero’s defence of Milo could also be interpreted as being a form of the legal “judo defense” which Toobin outlines in his work. With Cicero even conceding that Milo did indeed kill Clodius, Cicero proposed the argument of ‘self-defence’ as the reason for Milo’s killing of Clodius. Given Milo’s exile, the “judo defense” failed for Cicero, although Milo’s reputation for engaging in the gang violence will have damaged Cicero’s defence, as will Cicero’s own speech, for the copy which is extant is different to that which he gave originally. It is interesting to note how the “judo defense” method of legal defence is evident in trials held during the times of Republican Rome, and that it has become one of the most effective legal defence practices used in trials, despite its original failings.
Reasonable Doubt
Perhaps the most striking similarity between the respective defences is how they each built their cases upon ‘reasonable doubt’, something which was a key factor in ancient trials. During his defence of Milo, Cicero proposed that there was ‘reasonable doubt’ Milo had attacked Clodius, as the prosecution insisted. Instead, Cicero outlined a version of events in which Milo acted in self-defence, and suggested Clodius had waited for Milo on the Via Appia, in the knowledge that Milo would be travelling to Lanuvium to carry out his religious duties. Within the trial, Cicero highlights the questionable character of Clodius to denigrate his character and to cast ‘reasonable doubt’ on the portrayal of Clodius as the victim. Cicero attacked the credibility of evidence provided from the interrogation of slaves, which often happened under torture in Ancient Rome, as they were not entitled to the same rights as Roman citizens. Cicero’s concession that Milo had killed Clodius cast ‘reasonable doubt’ on the testimonies of the slaves, who, under the duress of torture, could have alleged that Milo’s killing of Clodius was premeditated, which even then would have constituted murder. However, the senatorial jury declared this was the case and sentenced Milo for murder accordingly, in what was a rare judicial defeat for Cicero.
The legal concept of ‘reasonable doubt’ had an enhanced influence on the trial of OJ Simpson due to the contemporary novelty of DNA evidence and questions about the reliability, and about the police’s handling, of evidence. In English law, a jury can only convict when they are beyond ‘reasonable doubt’ that the defendant is guilty. This principle was explicitly outlined in the case of Woolmington v DPP [1935] UKHL 1, which cites the trial of Rex v. Davies 29 Times LR 350, noting how “Juries are always told that, if conviction there is to be, the prosecution must prove the case beyond reasonable doubt. This statement cannot mean that in order to be acquitted the prisoner must “satisfy” the jury.” The legal proof of ‘reasonable doubt’ is also a staple of the American justice system, although Whitman in his theses outlines how the term ‘reasonable doubt’ cannot be found within the American Constitution.[4] The prolific lawyer Johnnie Cochran sought to exploit the legal proof of ‘reasonable doubt’ in the trial of OJ Simpson. He proposed that there was ‘reasonable doubt’ in the results of the DNA analysis from blood samples taken from the crime scenes and on the gloves found, highlighting the mishandling of evidence as adversely impacting the results of the DNA analysis. Through challenging the ‘reasonable doubt’ about the reliability of the evidence, Cochran was able to persuade the jurors to question the now universally accepted DNA analysis and built his case upon testimonies rather than the scientific data available. Interestingly, Cochran’s stance of challenging ‘reasonable doubt’ of the scientific analysis was instrumental in winning the case for the defence.
As justice systems evolve, it is interesting to see how legal practices used today are similar to those used in the Ancient World, despite the clear advances in technology and science within the justice systems. It is intriguing that in each trial, the defence took similar steps to defend their clients, both incorporating what Toobin constitutes as “judo defense”, and casting ‘reasonable doubt’ on the claims of the prosecution, despite the remarkably different outcomes of the trials.
Bibliography
Cicchini, M. D. Instructing Jurors on Reasonable Doubt: It’s All Relative, (OCT 2017). Accessed on 04/07/21 via: https://www.californialawreview.org/instructing-jurors-on-reasonable-doubt/#_edn2
Cicero, Pro Milone. In Pisonem. Pro Scauro. Pro Fonteio. Pro Rabirio Postumo. Pro Marcello. Pro Ligario. Pro Rege Deiotaro. tr. N. H. Watts, Loeb Classical Library 252., (Cambridge, Mass., 1931).
Toobin, J. The People V. O.J. Simpson, Penguin, (London, 2016).
Whitman, J. Q. The Origins of “Reasonable Doubt”, Yale Law School, 2005. Accessed on 04/07/21 via: https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1000&context=fss_papers
WOOLMINGTON APPELLANT; AND THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT. (May, 1935). Accessed on 06/07/21 via: http://www.bailii.org/uk/cases/UKHL/1935/1.html
Comments