Later this month, O.J. Simpson will appear on Fox in a two-hour special called If I Did It, Here’s How It Happened. According to a news release, Simpson will explain “how he would have carried out the murders he has vehemently denied committing for over a decade.” Could O.J. go back to court because of something he says on TV?
It’s not impossible. The Bill of Rights protects Simpson from being tried twice for the same crime. But double jeopardy protection isn’t absolute, and a criminal who’s acquitted once could still end up behind bars. Here are a few scenarios that might result in Simpson’s return to court.
1. They could go after him for lying. California prosecutors can’t retry O.J. for the murders of Nicole Brown Simpson and Ron Goldman. They are free to haul him back before a judge if they think he committed another crime—like perjury, or lying to the police.
Actual risk to O.J.:None. Simpson never actually testified under oath at his own trial. At one point, he did announce to the court, “I did not, could not, and would not have committed this crime,” but he wasn’t on the witness stand. (Click here for an audio clip.)
He’d be in the clear even if he had lied on the stand. The statute of limitations for perjury in California is three years, and the Simpson trial ended more than a decade ago. Likewise, any criminal liability O.J. might have for obstructing the duties of California police officers would have lapsed many years ago.
2.Thefeds could charge him with civil rights violations. The principle of “dual sovereignty” overrides Simpson’s double-jeopardy protections. That means he could be tried in federal court for the same crimes he was acquitted of in state court. The precedent for this goes back to 1922, when a gang of Washington moonshiners were prosecuted under both state and federal prohibition laws. (Crimes that occur in multiple states are also subject to double prosecution.)
Actual risk to O.J.: Minimal. It turns out there’s no statute of limitations on federal civil rights cases involving murder. In theory, federal prosecutors could go after O.J. at any time under Title 18, Section 242 or Section 245.
But it’s very unlikely that the Justice Department would press civil rights charges. First, the department’s “Petite Policy” strongly discourages prosecutors from pursuing cases that have already been tried in state court. Second, it would be hard to make a civil rights charge stick, given the facts of the case: O.J. isn’t a government employee; the victims weren’t murdered on public property; and there’s no evidence of a hate crime.
That’s not to say it couldn’t happen. In 1984, the feds stepped in and convicted a California Highway Patrolman of civil rights violations for murdering an actress two years before. (His trials in state court had ended in hung juries.) In the 1990s, a federal court in Los Angeles convicted two of the police officers who had been acquitted in state court for the videotaped beating of Rodney King.
3. Someone could go after him for fraud. If Simpson confesses his guilt on national television, it’s possible that he’d be on the hook for any money he made as a result of maintaining his innocence for the past 11 years.
Actual risk to O.J.: Uncertain. It depends on what Simpson has been up to recently. If he’d raised money to help find his wife’s killer, for example, he’d certainly be exposed to prosecution for fraud. We do know that O.J. has appeared in a sleazy DVD called Juiced, in which he makes frequent jokes about the murders and his trial.
If Simpson did end up in court, could his televised “hypothetical” confession be used against him? Yes. The fact that he’s beginning every sentence with “If I did it … ” might give him a little bit of wiggle room, but it doesn’t grant him any kind of immunity. His hypothetical confession will still be damning if it reveals any new information about the case that only the killer could have known.
Got a question about today’s news? Ask the Explainer.
Explainer thanks Dan Richman of Fordham University.