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If you’ve been wronged in a significant way, your instinct might tell you that it’s worthy of a lawsuit. Maybe it is. It’s important to understand when an action is a crime versus when it’s a civil liability issue, and what you can do about it in either situation.
First, let’s do a quick review of some important legal vocabulary you’ll need to know:
- Plaintiff - The plaintiff is the person or entity that files a lawsuit in a civil case. For our purposes, we’ll refer to a plaintiff as a person, but it can be a person, company, non-profit organization, government or public organization (for example, a school district), or anything that has legal status. The plaintiff claims to have suffered harm from the defendant’s actions. That harm could be physical, emotional, or financial.
- Defendant - In a civil lawsuit, the defendant is the person or entity that’s being sued. In a criminal proceeding, the defendant is the person charged with a crime.
- Civil lawsuit - A civil lawsuit is the entirety of a proceeding from the time the plaintiff files a legal document, called a complaint, against a defendant. The legal process includes all following court motions and settlement negotiations, all the way to trial and judgment (if it goes that far).
- Criminal proceeding - A criminal case begins when a person is arrested and charged with a crime, and that person becomes the defendant. There isn’t a “plaintiff” in a criminal case; charges are always brought by the government (federal, state, or local). Even if there’s a victim, that person isn’t a plaintiff — they might be a witness, but the case is filed by a prosecutor, not a private individual.
Differences between civil and criminal law
One major difference between civil and criminal law is that a civil lawsuit is always the result of harm to a person or entity. A civil lawsuit is filed when someone was harmed as a result of someone’s negligence or recklessness, but the defendant hasn’t necessarily broken any laws.
For example, if you slipped and fell from a water spill on a supermarket floor, you might be able to file a civil slip and fall lawsuit for your injuries. The store personnel might have been negligent in not keeping the walking area safe, but that doesn’t mean they committed a crime.
Was I the victim of a crime?
It might sound ridiculous that you even have to ask yourself this question — of course you know if you’re the victim of a crime!
But do you really know?
Let’s break down what kinds of actions are covered by criminal law, and which are civil. A criminal act is one that is an offense against the public, society, state, or individual.
A person can be charged with a criminal offense even if no one was harmed simply because the behavior was against the law. In other words, a crime was committed, even if no one got hurt.
Here are some examples of victimless crimes:
- Drug use
- Public drunkenness
In each of these situations, the perpetrator could be arrested simply for having broken the law, even though no one was actually hurt by their actions.
Civil cases, on the other hand, involve a victim who was harmed in some way by the defendant (physically, emotionally or financially). Civil claims include (but aren’t limited to):
- Torts, or any wrongful act that entitles an injured person to compensation. This includes all personal injury cases such as car accidents, slip and fall, wrongful death, property damage, and others.
- Breach of contract claims, which is when one person, party or company fails to uphold their part of an agreement with the plaintiff, resulting in financial harm.
- Equitable claims, which is when a request is made to the court to order a party to either take some action or stop some action. For example, a restraining order or injunction to stop doing something (like destruction of property, transfer of land, etc.).
- Landlord/tenant disputes, which is when there is a disagreement between the landlord and tenants regarding financial matters or unsafe conditions in the residence that causes physical harm to the tenant (such as black mold).
The defendant’s state of mind is an important factor in determining whether an action is a civil tort or a criminal act.
When state of mind matters
You’re walking down the street using the sidewalk and facing traffic. It’s a narrow sidewalk, and cars are passing you with about 3 feet in between you and the oncoming traffic. A driver in an oncoming car hears his phone buzz and takes his eyes off the road for an instant to read the text. He swerves just enough to hit you as he passes. You’re knocked down and suffer broken bones, but you’ll ultimately recover.
This driver is likely negligent because he engaged in distracted driving, which means you can sue him in civil court for your injuries.
Depending on what state you’re in, he might receive a traffic ticket for using his phone while driving. But he likely won’t be charged criminally if there’s no proof that he hit you intentionally or recklessly.
You’re the manager of a small retail store. A customer comes in and asks to return an item he purchased over a year ago, even though there are posted signs that clearly indicate “No returns or exchanges after 30 days.” The customer becomes irate and you try your best to appease him, even by offering a discount on a new item, which you normally wouldn’t do.
Finally, after you explain that you don’t have the authority to break the 30-day rule and he’ll have to come back when the owner is available, he storms out of the store in a huff.
About 45 minutes later, you leave the store for your lunch break. As you’re heading toward the parking lot, you suddenly hear an engine rev behind you. The irate customer is in his car and drives — fast — toward you and hits you. Fortunately, you were able to jump out of the way to an extent, but he still knocks you down and you suffer broken bones, bruises, and lacerations.
In this situation, you’d call the police. You can’t charge the customer with a crime, but based on your testimony and the evidence, the police could charge him with a crime like assault if they think he acted intentionally or recklessly.
Actions that are both civil and criminal
There are some circumstances when a case could be both civil and criminal.
Possibly the most well-known example of a case that was tried both in criminal court and in a civil lawsuit is O.J. Simpson.
O.J. Simpson was a Heisman-winning football player, sportscaster, and actor.
In 1994, he was charged with murder in the deaths of his ex-wife, Nicole Brown Simpson, and her friend Ron Goldman.
After a lengthy and highly-viewed criminal trial, he was acquitted (found not guilty). However, the families of Brown Simpson and Goldman filed a civil wrongful death lawsuit against him. In that proceeding, the court awarded the families a $33.5 million judgment after finding that Simpson was liable for their deaths.
How is it possible that one court found him not guilty and the other found him liable?
This happens because the burden of proof is different in a criminal proceeding than a civil lawsuit. In a criminal trial, the burden (or responsibility) of proving the defendant’s guilt is always on the prosecution. The defendant is presumed innocent unless the prosecution proves him or her guilty.
In a civil trial, the burden begins with the plaintiff but sometimes shifts to the defendant. In other words, the plaintiff makes a claim and sets forth an initial set of complaints. The defendant responds by denying all or some allegations. The burden then shifts to the defendant to prove their defense or counterclaim.
Criminal trial evidence standard
A criminal case hinges on whether the evidence proves that the defendant committed a crime beyond a reasonable doubt.
The prosecution must show, with credible evidence, that the only logical explanation for how the crime occurred is that the defendant caused it to happen. The judge or jury must believe to a “moral certainty” that the defendant committed the crime.
Credible evidence is a standard required in criminal trials, which means the jury must conclude that the evidence presented is natural, reasonable, and probable.
Civil trial evidence standard
Just like in a criminal trial, a judge or jury needs to be sure the defendant is liable in a civil lawsuit. But the standard is slightly different. In a civil proceeding, the plaintiff must show that the defendant is liable by a preponderance of the evidence. That means the event was more likely than not to have occurred, or that 51% of the evidence favors the plaintiff’s outcome.
In Simpson’s criminal trial, the jury found that the evidence was insufficient to prove beyond a reasonable doubt that he committed the murders. However, the jury in the subsequent civil trial determined that a preponderance of the evidence indicated that he was liable for the deaths of Nicole Brown Simpson and Ron Goldman.
Outcome of civil vs. criminal cases
When you bring a personal injury civil lawsuit, there’s only one remedy: money.
No matter what you’re suing for, whether it’s a contract dispute where you lost money or a personal physical injury, the only thing the court will award in a civil suit is financial damages.
Damages can be economic, non-economic, or punitive. The court will determine whether the defendant was liable, or at fault, for the harm. If so, the defendant will be ordered to pay the plaintiff a sum of money.
In some states, plaintiffs and defendants can be found to both have a percentage of liability. Sometimes that means the plaintiff receives a reduced damage award, based on the amount of liability.
Fault Systems by State
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The legal intent behind the civil court system is to make a plaintiff whole. In other words, the process is designed to restore you to the position you were in before the harm occurred. The court can’t take away your personal physical injury or bring back a lost loved one, but it can help you to recoup money spent on medical treatment, lost wages, and other financial losses.
In a criminal case, the outcome will be a punishment if the defendant is found guilty. Unlike civil cases, a defendant can’t be partially responsible, and there’s no sharing of liability. There’s a possibility that a defendant can be found guilty on some charges but not others, even when related to the same action.
If the victim participated in the crime in any way, the charges might be reduced or the sentence could be lighter. But the victim wouldn’t benefit financially or otherwise based on a defendant’s guilt or innocence. If the prosecutor believes that the victim also committed a crime, they’d be charged for their actions in a separate proceeding.
There’s a range of possibilities for how a criminal defendant can be sentenced. It’s often at the judge’s discretion and based on the severity of the crime, but there are sentencing guidelines and minimums or maximums for certain charges. The sentencing requirements will vary based on the state where the crime is tried. Generally, a sentence entails either a fine, probation, community service, or imprisonment. There can be other penalties, too, like house arrest, or restriction or loss of a driver’s license.
What about double jeopardy?
Double jeopardy is a constitutional right set forth by the 5th Amendment that prohibits the government from prosecuting someone twice for the same crime.
That means if someone has been charged with a crime, the government can’t:
- Prosecute a second time after the person is acquitted (found not guilty)
- Prosecute for the same offense after the person is convicted (found guilty)
- Punish more than once for the same offense
Double jeopardy only applies in criminal cases. That’s why you can file a civil lawsuit after someone has been convicted of a crime (or if the person was acquitted).
What if new evidence surfaced today that proves his guilt? Say, for example, video footage is uncovered that shows him killing Nicole Brown Simpson and Ron Goldman.
It’s too late. He’s already been acquitted in a criminal trial. No matter what the evidence is or how compelling it is, he can’t be criminally tried again for the same crime.
However, if O.J. was convicted (found guilty) and new evidence is discovered that would exonerate him (show that he wasn’t guilty), that evidence could be presented to the court in the form of an appeal. The 5th Amendment can only act in someone’s favor, not work against them.
Finding the right lawyer for your case
Just like you wouldn’t see an eye doctor for a sore throat, you wouldn’t go to a criminal lawyer for a civil case. That’s why it’s important to know what kind of case you’re pursuing and who to call.
If you’ve been charged with a crime, you have three options:
- You can find a private criminal lawyer to represent you. Even among criminal defense lawyers, you want to find one who specializes in the particular crime involved in the charge.
- You can ask for a public defender (a criminal defense attorney appointed by the court).
- You can be a pro se defendant (represent yourself).
If you’re the victim of a crime, your only recourse is to report it to law enforcement.
If you’ve been injured by another person’s negligence, you can hire a personal injury lawyer to handle the case and explore your options. Sometimes, the other party will respond to something as simple as a single demand letter, but you might need to try to negotiate a settlement or even go to trial.
The Enjuris Personal Injury Law Firm Directory is your source to find the right lawyer who can best guide you through the complex legal process. Find a lawyer based on location and specialty, and get your day in court.
See our guide Choosing a personal injury attorney.