When Criminal Law and Civil Law Overlap: Felonies
A previous blog post highlighted a few misdemeanor offenses which may also create liability in the civil realm. Many felonies also result in civil actions paralleling or following a criminal matter. In some cases the criminal and civil matters may be filed at the same time which creates a number of discovery, defense, and constitutional issues. More commonly civil cases are filed after the resolution of the criminal matters. As discussed below, even when a criminal matter is dismissed outright or a defendant is found not guilty at trial, a civil case may still be filed. Because of the potential risk it is very important to discuss the possibility of civil liability any time a criminal offense is charged.
There are several reasons a matter may filed in a civil court regardless of the outcome of the criminal matter. One of the reasons is the significantly lower standard in civil courts – preponderance of the evidence – rather than the high criminal standard of proof beyond a reasonable doubt. Another major difference in civil and criminal courts is a person cannot be made to testify during a criminal proceeding. The prosecutor has no right to call the defendant as a witness. Furthermore, jurors are instructed, often repeatedly, by the judge that they cannot hold it against the defendant if they opt to not testify on their behalf. However, in civil cases both parties can call witnesses who are relevant to proving their case, including the defendant. One of the most well-known examples of this distinction between civil and criminal cases was the highly televised legal saga of O.J. Simpson. During his criminal prosecution, Mr. Simpson was not required to testify, and the prosecution had to meet the high burden of proving every element of the crime beyond a reasonable doubt. In the civil matter, Mr. Simpson was called as a witness, and the plaintiff only to had to prove its case by the preponderance of the evidence (essentially more likely than not).
While the O.J. Simpson cases provide a good example of the potential different outcomes in civil and criminal cases, there often times is less divergence in the two cases. This can be especially true in matters related to the operation of a business. Because of the different rules and requirements in civil and criminal courts it is very important to have a legal team that is well versed in handling both types of cases. For example, it is not uncommon for a civil suit alleging causes of action for fraud, unjust enrichment, and breach of fiduciary duty against corporate officers who are charged in criminal court with anything relating to their operation of the business (examples could include fraud, embezzlement, and theft). Providing a coordinated defense to both the civil and criminal matters is critical for preservation of defenses to both actions as well as a defendant’s constitutional rights.
For example, as mentioned above a defendant can be called as a witness in a civil matter. This means that depending on the timing of the civil case there is the potential for a defendant to be called to testify on the civil matter before the criminal matter is resolved. This clearly creates concerns for protecting a defendant’s 5th Amendment rights to not incriminate themselves. Likewise, in civil matters a defendant can be ordered to attend a deposition. At a deposition the defendant would be put under oath and can be asked questions by the plaintiff’s lawyer. Depositions are typically transcribed and can be videotaped. Again, there are huge concerns about the potential for self-incrimination.
In looking at the criminal matter, if a defendant pleads guilty to actions
with a similar factual basis to the allegations alleged in the civil matter,
this could have an impact on the civil case. Plea paperwork is typically
public record which would be easily accessible by a plaintiff’s
attorney on a civil matter. A statement signed by the defendant admitting
to the underlying claims could be very damaging to a defense on the civil matters.
As stated above, it is imperative for defendants to consult with an attorney as soon as they believe they are being investigated for a criminal offense. Working to limit liability and protect a person’s defense is critical. The attorneys at Stein, Lotzkar & Starr can assist with determining whether there is the potential for civil liability and work with you to protect your rights.