What they’ll hear about Spector

RICHARD D. FRIEDMAN is a professor of law at the University of Michigan.

ACTRESS Lana Clarkson died of a gunshot wound in a lonely hilltop chateau in Alhambra. Was it an accident, as Phil Spector -- the owner of the mansion and the only other person present when Clarkson died -- contended shortly after the event? Was it suicide, as Spector apparently contends now? Or was it, in fact, murder by the celebrated rock producer, as the People of California charge, in a case scheduled to go to trial March 19?

The beauty of the victim, the fame of the accused, the Gothic setting of the violent death and the suggestion that her rejection of his sexual advances sparked a homicidal rage are sure to make the Spector trial a theatrical event. At bottom, though, it will be like any other criminal trial: a search for truth in the face of almost inevitable uncertainty.

The stakes of a murder trial are enormous. To acquit a guilty defendant is highly unfortunate; to convict an innocent one is an abomination. The only way to maximize the chance that the jury will make an accurate decision is to present to it all the evidence that could significantly affect a rational assessment of the probability of guilt.


And yet that rarely happens. In actuality, there are crucial considerations that often require shutting the eyes and ears of the jury, even to very relevant evidence.

For example, if the state procures evidence by improper means -- by coercing a confession, say, or by violating the 4th Amendment’s ban on unreasonable searches or seizures -- the evidence ordinarily may not be admitted against the accused, no matter how germane it may be. The consequences of this “exclusionary rule” are sometimes unappealing; Benjamin Cardozo, then a member of New York’s highest court, summarized the rule succinctly in 1926 (while rejecting it) with the memorable line, “The criminal is to go free because the constable has blundered.” Cardozo notwithstanding, the U.S. Supreme Court made the rule applicable against all states in 1961.

The justification is simple enough. Police are “repeat players” in our criminal justice system -- they are involved in one case after another, and are therefore particularly likely to respond to long-term incentives. If the rules allowed evidence procured in violation of the Constitution to be used as proof of guilt, then the police would have little incentive to behave constitutionally. Given the exclusionary rule, however, police officers are highly motivated to operate within constitutional limits.

In Spector’s case, the rules about what evidence should be allowed or excluded have already come into play several times in pretrial proceedings.

First, there was a question of whether his own statement made to his driver in the immediate aftermath of the killing -- that he had shot someone by accident -- should be allowed. This was an easy one for the judge. There were none of the issues that often lead to exclusion; the statement was neither coerced nor made to a police officer before the suspect had been given his Miranda warnings. So the judge properly agreed to admit it.

Second, there was a slightly more complicated issue involving some earlier firearms convictions. Sometimes (in cases in which the defendant testifies in his or her own defense) a judge allows a prosecutor to tell the jury that the defendant has been convicted of a prior crime. This, theoretically, allows the prosecution a legitimate opportunity to undercut the defendant’s credibility by showing that he or she is willing to disregard important social norms.

But in this case, the judge excluded the prior convictions on the grounds that they were too old. (Besides, the whole theory makes no sense. A juror will not plausibly think, “At first, I thought it was unlikely that if Spector killed her, he would lie about it. But now that I know he has an old firearms conviction, I believe it’s much more probable that he would indeed tell such a lie.” (The prosecution was really hoping that the prior convictions would convince jurors that Spector is a bad guy.)

Most complicated was the last issue. Four other women are willing to testify about incidents in which Spector, who had been drinking, threatened them after they rejected his advances; the women claim that he pointed a gun at each of them, court records show.

That’s obviously critical information. Jurors will quite rationally believe that Spector is more likely to have pointed a gun at Clarkson if they hear about repeated similar behavior in Spector’s past.

Generally, however, we do not allow such testimony into evidence. If it is admitted, it “multiplies” the trial; in other words, instead of contesting one incident, the parties are now contesting several. More important, such evidence may persuade the jurors to convict a defendant, even if they are not confident beyond a reasonable doubt that he committed the crime he is charged with -- simply because they believe he or she is a bad person, and perhaps one who has not been punished sufficiently for earlier misbehavior.

And yet such “propensity evidence” -- evidence that is designed to show the defendant’s propensity to commit similar crimes -- can be so powerful that courts often are receptive to prosecutors’ resourceful efforts to find a way to justify its admission. Sometimes they characterize the evidence as being proof of a habit -- a label that does not fit well in the Spector case, which involved just a few incidents over a 20-year period.

Sometimes they come up with reasons other than a propensity theory for why admission of the evidence is justified. California courts have been generous, for example, in allowing prosecutors to prove that a defendant had a “common plan or scheme” to commit a certain type of act. Theoretically, this should require prosecutors to show that the prior acts and the crime charged are both parts of the same overarching scheme -- and that they’re not being introduced merely to show the defendant’s character or propensity to commit a similar crime.

The judge in Spector’s case, while not allowing the prosecution to prove some other incidents, ruled that the testimony of the four women could be admitted in order to show “lack of accident or mistake.” I’m dubious about that decision. Spector is not contending that he pointed a gun at Clarkson accidentally, and jurors are unlikely to give much weight to that possibility on their own. If the jurors do think that Spector might have pulled the trigger accidentally, prior incidents in which he pointed a gun without further mishap will not dispel that possibility.

The rules I have discussed are controversial among laypeople and lawyers alike. Their bounds are continually being defined, in mundane cases as well as spectacular ones. As you follow the spectacle of the Spector trial, bear in mind that these rules are not mere technicalities. Rather, they reflect the constant interplay in our attempt to determine the truth while preserving the essential protections built into our criminal justice system.