Crimes vs. Torts: An Analysis of Guilt and Liability in the Justice System

The commission of a crime may open the perpetrator up to civil liability; but the commission of a crime is not a prerequisite to a finding of liability in civil courts.

By Zachariah B. Parry, attorney at Pickard Parry Pfau.

The line between a crime and a tort is hard to discern for nonlawyers and can become blurred because of the significant overlap in terminology and in the acts that can constitute both crimes and torts.

A crime is an act committed against society, which is enforced by the government, the consequences for which result in the imposition of a punishment—like a fine, imprisonment, or even death.

A tort, on the other hand, is an act committed against a person or business, which is enforced by the one harmed, the consequences for which result in the imposition of liability—usually a monetary award or injunction.

The commission of a crime is a question of guilt versus innocence. The commission of a tort requires a determination of liability or non-liability.

The person who commits a crime is called a perpetrator or criminal. The person who commits a tort is called a tortfeasor.

Some acts constitute both a crime and a tort, and the remedies are not limited to one or the other. Indeed, it is not unusual for the same person to be prosecuted in criminal court at the same time they have to defend against allegations of civil wrongs.

Each court has its advantages. There are also shortcomings for each.

For example, in criminal court, the penalties can be much more severe. The same act in criminal court that merits a multi-year criminal sentence will at best result in the issuance of a monetary judgment and/or court order in civil court. Other than pursuing and prevailing on appeal, there is no recourse for the guilty defendant. Civil liability, however, can be avoided, with few exceptions, if the liable defendant qualifies and files for bankruptcy.

Another advantage of criminal court is that the victims can achieve justice at no cost to them beyond the taxes they already pay. The district attorney, who pursues the criminal charges, does so using tax-funded government funds. A victim/plaintiff who wants to pursue civil remedies may do so at a cost to them—usually by paying hourly or through a contingency arrangement.

Most attorneys do provide pro bono services, but the demand for free legal representation far exceeds attorney availability, so this is not an option available to everyone.

Perhaps the biggest advantage of a civil case over a criminal case is that the control remains with the victim (plaintiff). The district attorney in criminal cases has complete discretion to choose whether to pursue criminal charges—and given the immense caseload of the prosecutor, it is not unusual for charges pursued to fall short of the victim’s expectations. In many cases, either the prosecutor does not pursue charges at all or the police or FBI do not pursue the investigation, so the prosecutor never even finds out about the crimes committed.

Conversely, in civil cases, the plaintiff gets to choose when, whether, and to what extent to pursue civil remedies for the tortious act, insofar as they have the means available to fund a lawsuit.

Another advantage of civil cases over criminal ones is that the burden of proof is lower, meaning a civil case is easier to win than a criminal one. The standard of proof in criminal cases is “beyond a reasonable doubt,” meaning that the jury is instructed to return a not-guilty verdict if they reasonably doubt the defendant’s guilt. This is the highest burden of proof in any court.

In civil cases, most torts require proof by the “preponderance of evidence,” which means the defendant is liable if the evidence makes it more probable than not that the wrong was committed. This standard of proof can be illustrated by a set of scales. As long as the plaintiff’s evidence outweighs the defendant’s, the plaintiff should prevail.

There are certain cases in civil court, like in cases of fraud, where the standard of proof is steeper than preponderance of the evidence. To prevail under theories of fraud, the plaintiff must prove with “clear and convincing evidence” that fraud occurred. This standard requires that based on the evidence presented, the alleged fraud be substantially more probable than not.

Because the burden of proof in civil cases is lower, even if the prosecutor is unable to meet the reasonable doubt standard at trial, the civil plaintiff may still be able to prevail civilly. Perhaps the most famous example of this involved the O.J. Simpson murder trial. O.J. Simpson was found not guilty for the murder of Nicole Simpson and Ron Goldman, but was later found civilly liable for the same act.

There is a certain amount of evidentiary synergy between parallel criminal and civil cases. If both criminal charges and civil allegations have been brought, admissions or findings in one case can often be used in the other. For example, if a jury finds the defendant guilty in the criminal cases, that conviction can be used as evidence in the civil case, which all but guarantees a finding of civil liability.

Conversely, a defendant’s admission in civil court can be used to prove guilt in the criminal court, which is why the Fifth Amendment privilege against self-incrimination is equally applicable in civil cases as in criminal proceedings.

As discussed above, there are many acts that constitute both a crime and a tort. Although not an exhaustive list, the what follows is a list of some crimes with the likely counterpart tort (some crimes share the same names as the torts, but their definitions differ slightly)*:

Assault – assault

Battery/mayhem/attempted murder – battery

Theft/larceny – conversion

Vandalism/arson – conversion

Kidnapping/false imprisonment – false imprisonment

Murder/manslaughter – wrongful death

Burglary – trespass and conversion

Breaking and entering – trespass

Forgery/counterfeiting – fraud

Not all crimes are easily translatable into torts. There are far more crimes than there are torts, and depending on the specific set of facts, a given act may fit one tort in one situation but not in another. For example, changing the reading on the odometer of a car is a crime, but depending on the facts, it may or may not be a tort (or even the element of a defense to a breach of contract claim). If the odometer is changed on the tortfeasor’s own car to increase the amount someone is willing to pay for it, it is fraud. If it is changed on someone else’s car, it could constitute conversion and trespass. If two or more people are involved, it could be civil conspiracy.

Some crimes, particularly those without an easily identified victim—like illegal possession of a firearm, ballot tampering, or tax evasion—do not necessarily give rise to a separate right to sue civilly, called a private right of action. Although beyond the scope of this article, the U.S. Constitution requires that plaintiffs who bring civil suits have standing to do so, which at a minimum means that the manner in which the defendant has wronged the plaintiff cannot be too attenuated.

Additionally, the commission of some crimes, if they form a pattern committed by a criminal enterprise, can constitute either state or federal racketeering (RICO), which gives a civil plaintiff the ability to prosecute these crimes in civil court. These crimes, though too numerous to be set forth exhaustively, include, without limitation, mail fraud, wire fraud, theft, extortion, bribery, and fraud.

One other difference between criminal and civil law is how minors are involved and treated. A minor defendant in criminal cases has more rights than a minor defendant in civil cases, like anonymity—the identity of a minor in a criminal case (as long as he or she is not tried as an adult) is kept sealed from the public. A minor in civil court has no such built-in protection (though cases in civil court can be sealed in certain extenuating circumstances).

In civil court, though minors are generally treated the same as adults, some of the elements of a tort are interpreted differently when allegations are brought against someone younger than 18 (for example, in negligence cases, what is reasonable behavior for a child is different than what is reasonable behavior for an adult), the elements themselves don’t differ depending on the defendant’s age.

However, if a minor does commit a tort, it will most likely be the parents of the minor who are ultimately liable for the loss. In some cases, parents can be criminally liable for the actions of their children.

If you have been accused of committing a tort, or have been the victim of one, speak to a qualified attorney. If there are parallel criminal proceedings, there are special considerations to be made, and an attorney experienced in the implications of criminal findings on the civil case will know best how to maximize your chance to prevail.

*The commission of a crime or a tort is case-specific. Not all of the enumerated crimes would necessarily constitute the tort listed. A civil attorney would have to perform a fact-specific analysis to be sure.

Zachariah B. Parry

Zachariah B. Parry is a founding partner of the civil litigation law firm, Pickard Parry Pfau. He regularly litigates against parties with deep pockets like labor unions, racketeering enterprises and insurance companies. He has experienced success on both sides of the table, including multiple multi-million dollar judgments on behalf of plaintiffs in fraud cases and zero-dollar defense verdicts for his clients who were unjustly sued. In addition to litigating, Zach also teaches torts, contracts and Nevada practice and procedure at UNLV’s paralegal program.

Zach can be reached at zach@pickardparry.com, 702-910-4300, or through his firm’s website at www.pickardparry.com.


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