CRIMINAL PROSECUTION AND A CIVIL LAW SUIT

Compare and Contrast the Differences Between A Criminal Prosecution and A Civil Law Suit

Compare and Contrast the Differences Between A Criminal Prosecution and A Civil Law Suit

Introduction

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 (Bell, 1997). 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.

Punishment

One of the most fundamental distinctions between civil and criminal law is in the notion of punishment.

Criminal Law

In 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 (Bell, 1997).

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 (Bell, 1997). 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 (Huber, 1988), 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.

Effect of Punishment

The notion that the threat of punishment will deter criminal conduct is based on the principle that human beings are rational. In practice, criminals are either impulsive ...