Contrasting the Criminal Process with the Civil Process
In the American legal system, a legal matter can be addressed in the criminal justice system or through a civil action. Because these processes are distinctly different, you need to be certain that the attorney who represents you is experienced with and knowledgeable of the unique aspects of each system.
Who Initiates Legal Action?
In a civil lawsuit, any citizen may bring legal action against another, against a business entity, or against a governmental body, provided he or she has “standing,” essentially a sufficient connection to and resulting harm from any wrong alleged. The person bringing a civil action is called a plaintiff, and is seeking redress for his or her losses.
In the criminal justice system, legal action is always brought by a governmental body—local, state or federal—on behalf of the citizenry. Prosecutors or district attorneys represent the people and take action on behalf of the public. A private individual cannot file a criminal action, but may ask police or prosecutors to consider bringing charges.
What is the Legal Basis for Determining Wrong?
Crimes are identified by statutes, written laws enacted by legislatures. To be charged with a crime, you must be shown to have violated the provisions of a criminal statute or ordinance.
Though state and federal legislative bodies have enacted some statutes that call for civil liability for certain wrongs, most torts and other civil actions are based on what is referred to as “the common law.” The common law, written down in judicial opinions, has been refined over hundreds of years, with many of our civil actions having their origin in English common law.
What are the Potential Sanctions or Punishments?
In a civil action, there are typically only two types of redress: monetary damages and specific performance. In most civil actions, the party found liable ultimately must pay some form of compensation to the injured party—that is referred to as monetary damages. In a limited number of instances, usually involving breach of contract, a party may ask the court to compel the other party to perform as promised—that is specific performance.
In the criminal justice system, defendants who are found guilty customarily face incarceration, fines, mandatory restitution, and other sanctions, including probation, rehabilitation and community service. Any fines paid in a criminal action are paid to the state, whereas all money paid in a civil action goes to the other party (or that party’s attorney).
What is the Burden of Proof?
Because a criminal conviction may include the loss of freedom—jail or prison time—the burden of proof is higher in a criminal matter than in a civil action. To obtain a criminal conviction, a prosecutor must show guilt beyond a reasonable doubt. Note that a criminal conviction does not require absolute certainty, only that any doubt not be reasonable.
In a civil matter, on the other hand, the burden of proof is typically “a mere preponderance of the evidence.” Essentially, this means that it must be more likely than unlikely.
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