Common Law and Torts

¶ … American legal system consists of two types of cases, civil and criminal. Civil and criminal cases differ greatly from each other but also may share similarities in certain situations. Crimes are typically viewed as offenses against the state. These offenses are then prosecuted by the state. Civil cases are generally disputes between individuals or companies regarding the legal obligations and responsibilities owed between one another. Herein lies the main difference. Along with this there are several others to be discussed. In an uncommon case, the same conduct can produce civil and criminal liability.

How the system works is criminal law deals with looking after the interests of the public as a whole. This may involve punishing and rehabilitating offenders, as well as protecting society from harmful people. The government enlists the assistance of the police and prosecutor to put the criminal law into effect. How the government affords these services is through the use of public funds such as tax payer money. The chain of action for criminal cases are, someone reports a crime to the police and then it is their responsibility to investigate the matter and apprehend the suspect .

In most cases, if there is enough evidence for a charge and it has been properly presented, the Government, not the person reported the incident, prosecutes the case in court. This is called a system of public prosecutions. (Weston & Wells, 1976, p. 12) However Civil law concerns private disputes between individuals or between an individual and an organization/company/business or between organizations/companies/businesses. (Kelsen, 2006, p. 65) Civil law pertains to the injury or loss to one party or the other.

Instead of guilty or not guilty, a defendant in a civil case is found liable or not liable. And their punishment involves damages. To reiterate, crimes are deemed offenses against the state, or in a larger context, society as a whole. This implies that committing a crime against one person, for instance murder, is deemed an offense to all of society, not just that one person. Crimes of the state are then prosecuted by the state. (Weston & Wells, 1976, p. 24) The victim of a crime does not file the case in court, but rather the prosecutor and acts on behalf of the state representative of the state. If it were a civil case, it is up to the wronged party to file the case.

Another difference is criminal offenses and civil offenses impose different punishments. For instance, a potential punishment for criminal cases is jail time. Punishments for civil cases commonly result in only monetary penalties or orders to do or not do something. Criminal cases have the potential to involve both jail time and monetary penalties in the form of fines.

The standard or burden of proof is also varied as it pertains to a criminal case vs. A civil case. For criminal cases to be convicted, generally the prosecutor must prove "beyond a reasonable doubt" the defendant is guilty. Civil cases require less or lower standards of proof in order to get a conviction such as "the preponderance of the evidence. The preponderance of the evidence means it's mostly likely than not that something happened in a particular manner. (Kelsen, 2006, p. 132)

The difference in standards exists due to the lack of severity associated with civil liability. Civil liability is not seen as needing a severe punishment. Which brings examination of another key difference. Criminal cases for the most part allow trial by jury with the jury giving final verdict. Civil cases do allow juries for some situations, but the majority of civil cases have the judge give final verdict.

The parties in a criminal case and a civil case also differ in representation. A defendant in a criminal case has the right to an attorney even if he or she cannot afford one. If he/she cannot afford a lawyer, the state must provide one. Defendant in a civil cases do not get the option of a court appointed lawyer and must then either defend him/herself or pay for legal representation.

Defendants of criminal cases are also afforded protections under criminal law. Some examples are protection against illegal searches and seizures and the right to remain silent. These well-known protections are not available to a civil case defendant. This usually proves to be damaging to a civil case defendant.

Generally, the differences in criminal and civil cases lie in the degree of consequences. Because criminal cases have greater consequences, like the possibility of jail and/or death, criminal cases are allotted more protections and are harder to prove. That does not mean that civil and criminal cases cannot share similarities. In uncommon cases, the same conduct can lead to both civil and criminal liability.

A famous example is that of OJ Simpson in the OJ Simpson trial. The same conduct led to a murder trial pertaining to the criminal side, as well as a wrongful death trial pertaining to the civil. Partly due to the difference in standards of proof, as explained earlier, there was not enough evidence for a jury to convict OJ Simpson as being guilty "beyond a reasonable doubt"(Lippman, 2007, p. 36) . In the civil trial, however, the jury found enough evidence to decide OJ Simpson wrongfully caused his wife's death by a "preponderance of the evidence."