Тема 4. Criminal and civil cases (1 час)

Crime is a violation of a law that forbids or commands an activity. Such crimes as murder, rape, arson are on the books of every country. Because crime is a violation of public order, the government prosecutes criminal cases.

Courts decide both criminal and civil cases. Civil cases stem from dis­puted claims to something of value. Disputes arise from accidents, contrac­tual obligations, and divorce, for example.

Most countries make a rather clear distinction between civil and crimi­nal procedures. For example, an English criminal court may force a defen­dant to pay a fine as punishment for his crime, and he may sometimes have to pay the legal costs of the prosecution. But the victim of the crime pur­sues his claim for compensation in a civil, not a criminal, action.

Criminal and civil procedures are different. Although some systems, in­cluding the English, allow a private citizen to bring a criminal prosecution against another citizen, criminal actions are nearly always started by the state. Civil actions, on the other hand, are usually started by individuals.

Some courts, such as the English Magistrates Courts and the Japanese Family Court, deal with both civil and criminal matters. Others, such as the English Crown Court, deal exclusively with one or the other.

In Anglo-American law, the party bringing a criminal action (that is, in most cases the state) is called the prosecution, but the party bringing a civil action is the plaintiff. In both kinds of action the other party is known as the defendant. A criminal case against a person called Ms. Brown would be described as "The People vs. (versus, or against) Brown" in the United States and "R. (Regina, that is, the Queen) vs. Brown" in England. But a civil action between Ms. Brown and Mr. Smith would be "Brown vs. Smith" if it was started by Brown, and "Smith vs. Brown" if it was started by Mr. Smith.

Evidence from a criminal trial is not necessarily admissible as evidence in a civil action about the same matter. For example, the victim of a road accident does not directly benefit if the driver who injured him is found guilty of the crime of careless driving. He still has to prove his case in a civil action. In fact he may be able to prove his civil case even when the driver is found not guilty in the criminal trial.

Once the plaintiff has shown that the defendant is liable, the main ar­gument in a civil court is about the amount of money, or damages, which the defendant should pay to the plaintiff.

Criminal law is much better known to laymen than civil law, as a result of journalists' reports of famous criminal trials. In talking with people about law, I find that they often misapply principles from criminal law to situations in civil (e.g., tort) law, which results in their misunderstanding. They are surprised when they learn the actual legal principles that apply to a problem. The purpose of this essay is to compare and contrast criminal and civil law.  In civil law, a private party (e.g., a corporation or individual person) files the lawsuit and becomes the plaintiff. In criminal law, the litigation is always filed by the government, who is called the prosecution. 

Criminal law -a guilty defendant is punished by either (1) incarceration in a jail or prison, (2) fine paid to the government, or, in exceptional cases, (3) execution of the defendant: the death penalty. Crimes are divided into two broad classes: felonies have a maximum possible sentence of more than one year incarceration, misdemeanors have a maximum possible sentence of less than one year incarceration. Civil law -in contrast, a defendant in civil litigation is never incarcerated and never executed. In general, a losing defendant in civil litigation only reimburses the plaintiff for losses caused by the defendant's behavior. So-called punitive damages are never awarded in a civil case under contract law. In a civil case under tort law, there is a possibility of punitive damages, if the defendant's conduct is egregious and had either (1) a malicious intent (i.e., desire to cause harm), (2) gross negligence (i.e., conscious indifference), or (3) a willful disregard for the rights of others. The use of punitive damages makes a public example of the defendant and supposedly deters future wrongful conduct by others. Punitive damages are particularly important in torts involving dignitary harms (e.g., invasion of privacy) and civil rights, where the actual monetary injury to plaintiff(s) may be small. One can purchase insurance that will pay damages and attorney's fees for tort claims. Such insurance coverage is a standard part of homeowner's insurance policies, automobile insurance, and insurance for businesses. In contrast, it is not possible for a defendant to purchase insurance to pay for his/her criminal acts.

While a court can order a defendant to pay damages, the plaintiff may receive nothing if the defendant has no assets and no insurance, or if the defendant is skillful in concealing assets. In this way, large awards for plaintiffs in tort cases are often an illusion. Here are some of the key differences between a criminal case and a civil case:

1. Crimes are considered offenses against the state, or society as a whole. That means that even though one person might murder another person, murder itself is considered an offense to everyone in society. Accordingly, crimes against the state are prosecuted by the state, and the prosecutor (not the victim) files the case in court as a representative of the state. If it were a civil case, then the wronged party would file the case.

2. Criminal offenses and civil offenses are generally different in terms of their punishment. Criminal cases will have jail time as a potential punishment, whereas civil cases generally only result in monetary damages or orders to do or not do something. Note that a criminal case may involve both jail time and monetary punishments in the form of fines.

3. The standard of proof is also very different in a criminal case versus a civil case. Crimes must generally be proved "beyond a reasonable doubt", whereas civil cases are proved by lower standards of proof such as "the preponderance of the evidence" (which essentially means that it was more likely than not that something occurred in a certain way). The difference in standards exists because civil liability is considered less blameworthy and because the punishments are less severe.

4. Criminal cases almost always allow for a trial by jury. Civil cases do allow juries in some instances, but many civil cases will be decided by a judge.

5. A defendant in a criminal case is entitled to an attorney, and if he or she can't afford one, the state must provide an attorney. A defendant in a civil case is not given an attorney and must pay for one, or else defend him or herself.

6. The protections afforded to defendants under criminal law are considerable (such as the protection against illegal searches and seizures under the 4th Amendment). Many of these well-known protections are not available to a defendant in a civil case.

In general, because criminal cases have greater consequences - the possibility of jail and even death - criminal cases have many more protections in place and are harder to prove.

Glossary: types of crime

Robbery - the crime of taking money or property illegally, often by using threats or violence

Arson - the illegal use of fire to destroy a house, building, or property

Assault - a physical attack on someone, or the crime of physically attacking someone

Battery - several large guns or other weapons, used together

Bribery - the crime of giving money or presents to someone so that they will help you by doing something dishonest or illegal

Burglary - the crime of entering a building illegally in order to steal things

Domestic violence - violence that takes place in the home between family members, especially adults

Drug trafficking - the business of buying and selling things such as drugs or weapons illegally. Someone who does this is called a trafficker.

Drunk driving - driving after you have drunk too much alcohol. The American word is drunk driving.

Embezzlement - to steal money that people trust you to look after as part of your work

Extortion - a crime in which someone gets money or information from someone else by using force or threats

Forgery - the crime of making copies of valuable documents or works of art in order to make money by selling them

Fraud - the crime of obtaining money from someone by tricking them

Homicide - the crime of killing someone

Insider dealing - the crime of buying or selling shares in a company using information that is available only to people working within that company

Joyriding - the crime of stealing a car and driving it for pleasure, usually in a dangerous way. If you do this you joyride, and a person who does it is a joyrider.

Kidnapping - the act of kidnapping someone

Larceny - the crime of stealing personal property

Manslaughter - the crime of causing someone's death illegally but without intending to

Money laundering - to hide the origin of money obtained from illegal activities by putting it into legal businesses

Obstruction of justice - the act of taking action in order to prevent justice

Rape - the crime of forcing someone to have sex by using violence

Shoplifting - the crime of following and watching someone in a threatening way

Stalking - crime of stealing things from a shop

Tax evasion - the use of illegal methods to pay less tax or to pay no tax at all

Theft - the crime of stealing. Someone who commits this crime is called a thief

Vandalism - the act of deliberately damaging or destroying things, especially public