“White may be gray
Black may be gray
When things are gray they can go either way
Painting things gray can pay”

- Gerald F. Uelmen

Professor Gerald F. Uelmen, Dean Emeritus of Santa Clara Law and member of the 1995 O.J. Simpson “Dream Team,” gave Jonnie Cochran, Jr. perhaps the most famous one-liner uttered in any modern trial: “If it doesn’t fit, you must acquit.” Since Mr. Simpson’s acquittal, Prof. Uelmen has authored two books, the most recent reflecting on lessons from a “life in the law.” At MCBA’s February membership luncheon, recently retired Prof. Uelmen shared some of those reflections and specifically addressed the question: Is a trial a search for the truth?

His short answer: No. Rather, a trial is the competition of two versions of the truth. He stated that a guilty verdict does not establish the truth of the prosecution’s case nor does exoneration establish the truth of the defendant’s. What then is a trial? According to Uelmen, it is the quest for “an acceptable level of certainty” about what happened.

In the O.J. Simpson proceedings, Uelmen highlighted that the same events produced two seemingly contradictory results. The state was unable to punish the defendant in the criminal case but the victims were able to obtain monetary compensation in the civil case. “That does not mean either decision was wrong,” Uelmen said. “It reflects different levels of certainty. Because we value liberty more than property, we have a higher level of certainty.” In the criminal context, the burden of proof is high and rests on the government. However, “where only money is at stake, proof by a preponderance is sufficient.” Hence Uelmen’s conclusion that trials and the adversarial process are a search for a particular level of certainty, not truth; certainty can be quantified, truth cannot.

Uelmen cited the trial of Galileo and Nicolas Malebranche’s, “The Search for Truth” to illustrate that these philosophical questions are not new and grow out of a distrust of the state. Uelmen commented that distrust of the state is hardly obsolete: the Bill of Rights itself demonstrates continuing suspicion of the power of government, which is also clearly part of the current political climate.

Professor Uelmen shared that he was never troubled to be on both sides of the table, and the ability to assume both roles is essential to the success of the adversarial process. He noted that he never had to represent somebody he knew was guilty, but regardless a lawyer is obligated to give the same defense to a client he or she believes is guilty as one believed innocent. Uelmen noted that the law has two bright lines, however: counsel cannot participate in perjury or withhold certain evidence.

Uelmen used an obligatory anecdote from the O.J. Simpson case to give an insider’s illustration of the role the truth vs. certainty. It became public that Mr. Simpson had bought a knife prior to the murders and there was extensive media coverage that it could be the murder weapon. While the prosecution did not find the knife, they planned to use its purchase as evidence. Uelmen found the knife in Mr. Simpson’s home and brought it to Judge Ito, who appointed a special master to oversee its testing. It was not the murder weapon. Judge Ito ordered the results disclosed to the prosecution to avoid an ambush at trial and the purchase of the knife was never mentioned again. Uelmen noted that Judge Ito’s order was “probably wise.”

In concluding his remarks, Uelmen lamented that our criminal justice system is still fraught with problems, such as mistaken identification, false confessions, and lab errors. DNA evidence has exonerated hundreds of people, many on death row. He noted that most disturbing is the racial disparity in those exonerated.

In response to a question from MCBA board member Tim Nardell, Uelmen stated that he would like to see the justice system become more rehabilitative and to take more of a restorative justice approach, which he has seen work well. Past President Randy Wallace asked what grade Professor Uelmen would give the California Evidence Code in contributing to the search for truth or at least certainty. Uelmen noted that after teaching evidence for forty-five years, he is a great fan of the California Evidence Code, more so than the Federal code and laments the trend towards the Federal code. When pressed, he said he would give it a B+, hoping it continues to be improved upon, and noting that as a professor, he did not give many As.