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  • Civil Versus Criminal Justice

  • Civil Versus Criminal Justice

    Criminal and civil are the two major and distinct components of America's justice system. The criminal justice system determines guilt or innocence in regard to crimes and metes out criminal sanctions. The civil justice system, among other things, permits crime victims to seek civil remedies for the physical and psychological injuries they have suffered as a result of criminal acts, permitting vindication of their rights and recovery of financial reparations from offenders.

    In some ways, the civil justice system is complementary to the criminal justice system. However, civil justice has numerous distinctions, many of which may be quite beneficial to victims of crime. The discussion below will provide an overview of the civil justice system that is basic to a victim advocate's understanding of this process.

    Civil litigation has become increasingly important for victims for various reasons. First, victims can encounter great financial distress due to their victimization. Medical and therapy bills mount up. Often jobs or income, as well as property and other assets, are lost. The civil justice system provides a mechanism for victims to seek recovery for losses resulting from their victimization.


    Numerous activities occur prior to the commencement of a legal action, perhaps the most important of which is engaging the counsel of a competent attorney. This also illustrates the first significant distinction between the civil justice system and criminal justice system for victims-in the civil process victims hire their own attorneys to pursue their actions.

    A second important distinction between civil and criminal procedures relates to who the "plaintiff" is. In criminal court, the prosecutor is a government employee who brings an action on behalf of the government entity against the alleged perpetrator. In civil matters, thecase is brought by the victim directly against the perpetrator and is typically captioned "Victim v. Perpetrator" as opposed to the typical criminal action caption of "State v. Perpetrator." The victim is in control of the civil legal action as opposed to being a secondary party, at best, to a criminal prosecution.


    Standing: Who can sue? Standing is a legal concept that refers to whether an individual has a legitimate right to address his or her complaints to the court. In order to have standing, one must generally be able to demonstrate that an injury has been suffered, be able to prove a sufficient personal interest in a cause of action or controversy, or be a necessary party in that his or her involvement is necessary to a fair and just determination of the outcome of the case.

    Unjust enrichment: Who can recover? One particularly important legal doctrine is called unjust enrichment. Unjust enrichment dictates that someone should not be allowed to benefit from their own wrongdoing. For example, someone who commits a murder should not be permitted to receive the proceeds of the insurance policy if he or she was named as the beneficiary of the decedent.

    Many times unjust enrichment, which is a common law doctrine (i.e., based on established caselaw), is also provided through statutory schemes sometimes referred to as slayers statutes. Slayers statutes, similar to their common law counterpart slayers rules, would prevent individuals from profiting from their crimes by making it impossible for them to inherit the proceeds of an estate of someone they have killed.

    Also, many states have rules that provide immunity, referred to as interspousal immunity, between married individuals that prevents them from suing each other, for example, in cases of assault. However, courts are increasingly rejecting the use of interspousal immunity as a defense for domestic violence or similar crimes.

    Burden of proof. One critical aspect of litigation is the threshold one has to establish in order to prove a case, otherwise known as the burden of proof. There is a major distinction between criminal and civil burdens of proof. In criminal courts, the beyond a reasonable doubt burden of proof is a very high burden, which is often described as having to prove your case to a very high degree of moral certainty. If a member of the jury has any reasonable doubt, which essentially means doubt that is formulated well enough that it can be expressed and supported by reason, that person should vote for acquittal of the defendant.

    The burden of proof is much lower in a civil trial. The civil justice system uses the mere preponderance of the evidence burden, which is sometimes expressed as 51 percent level of proof. Civil jury instructions, which are given to jurors by the judge prior to their deliberations on a case, often describe this as the "scales of justice tipping ever so slightly in the direction of one party versus another," meaning that the jury must find for the party who is supported by the weight of the evidence, even if this is only slightly so. This difference inburdens of proof can often result in a defendant being acquitted (found not guilty) of criminal charges, yet having a judgment rendered against him or her in a corresponding civil action.


    The recovery of financial losses, although extremely important, is not the only reason that victims look to civil litigation. Civil litigation can empower victims since they occupy the status of plaintiff, not merely witness. Also, going to civil court often allows victims, who so choose, to publicize the acts of the perpetrator. Further, the recovery of financial benefits reinforces the notion that the victim did suffer significant injuries and that it was the perpetrator who was responsible for injuring the victim and, therefore, made to pay for them.


    Civil litigation often works as a method of crime prevention. When perpetrators, or other negligent parties involved in creating the conditions of victimization, are made to pay for their violent acts or negligence, these acts are often not repeated. For example, when hotels are ordered to pay money damages for their lack of adequate security that caused rapes or assaults to occur, they often respond by improving security to avoid future lawsuits. This is true of many other institutional or third party defendants who have had to pay damages in negligence suits.

    Civil Litigation Basics

    As stated above, the civil justice system is in many ways similar to the criminal justice system with which most victim advocates are more familiar. To the extent that the two systems differ, much of this is reflected in the different terminology employed by each. As most victim advocates and service providers will be more familiar with the nomenclature of the "criminal side," a glossary of terms from the civil side is provided at the end of this section. Certain basic terms and phrases, however, will be defined here to help the reader to understand the following text.

    In a civil suit, the perpetrator is still referred to as the defendant, but the victim is now called the plaintiff. Essentially, a legal action is commenced by the plaintiff (victim) against the defendant (perpetrator or negligent third party) by serving lawsuit papers and filing them in court. Subsequently, a period of investigation called discovery occurs whereby the details of the matter are investigated by both sides in an effort to provide background information to bolster arguments in a way most favorable to their respective position in court.

    At some point in time a trial is possible, although the vast majority of civil legal actions are settled out of court. In the event of a trial, a verdict is ultimately reached. The verdict is typically returned by a jury that has sat through the trial listening to the facts as presented in evidence. If the verdict results in a judgment for the plaintiff/victim, then he/she will attempt to collect the amount now owed to him or her. If the verdict is in favor of the defendant, the plaintiff/victim has lost the trial.

    Often questions arise as to any direct relationships that exist between the civil and criminal justice systems. For the most part they are, at least theoretically, separate and distinct systems. However, it would be na´ve to think that despite this structure, there are no practical effects of these systems on each other. For example, a prosecutor will often be very interested in the victim's current status or future intentions regarding filing a civil suit. This is because his or her trial strategy may need to involve countering the obvious defense claim that the criminal complaint is being pressed by the victim in the hope that a criminal conviction will forward a civil complaint. Prosecutors don't want the jury to believe the defense's predictable claim that "It's all really about money, isn't it?" Also, the victim will need to take into account the status or the outcome of the criminal proceedings and the effects of these on the approach he or she should take regarding a civil action.

    Sometimes the criminal-civil connection is more direct. For example, the legal doctrine of collateral estoppel provides that, in some cases, the criminal conviction of perpetrators will be considered proof of some or all of that perpetrator's legal liability in civil actions brought by the perpetrator's victims and therefore does not have to be realleged and proven. Since the burden of proof is lower in civil actions than in criminal proceedings, the court can accept the criminal conviction as proof of liability in a corresponding civil action.

    This information came from a
    US DOJ online article.

    *** Any law, statute, regulation or other precedent is subject to change at any time ***

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