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1.4: The Difference between Civil and Criminal Law

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    Law can be classified in a variety of ways. One of the most general classifications divides law into civil and criminal.[1] Civil law deals with private wrongs that are generally, but not always, redressed through monetary damages, for example, a lawsuit seeking damages after an automobile collision, family law, contracts, or wills. As this definition indicates, civil law is generally between individuals, not the government. If individuals need to resolve a civil dispute, this is called civil litigation, or a civil lawsuit. When the type of civil litigation involves an injury, the injury action is called a tort. Criminal law involves the punishment of individual wrongdoing.

    Characteristics of Civil Litigation

    It is important to distinguish between civil litigation and criminal prosecution. Civil and criminal cases share the same courts, but they have very different goals, purposes, and results. Sometimes, one set of facts gives way to a civil lawsuit and a criminal prosecution. This does not violate double jeopardy (the Fifth Amendment protection against multiple punishments for the same offense) and is not uncommon.

    Parties in Civil Litigation

    In civil litigation, an injured party sues to receive a court-ordered remedy, such as money, property, or some sort of performance. Anyone who is injured—an individual, corporation, or other business entity—can sue civilly. In a civil litigation matter, the injured party that is suing is called the plaintiff. A plaintiff must hire and pay for an attorney or represent themselves. While the term plaintiff is normally associated with civil litigation, in a criminal prosecution, the government may also be referred to as the plaintiff. Plaintiff simply refers to the person or entity initiating the lawsuit. The person or entity being sued is called the defendant. The defendant can be any person or thing that has caused harm, including an individual, corporation, or other business entity. A defendant in civil litigation matter must hire an attorney or represent themselves. The right to indigent counsel does not apply in civil litigation, so a defendant in civil litigation who cannot afford an attorney must represent themselves. There are significant rules, exceptions, and exclusions to civil law and related litigation. Although there can be some overlap in certain circumstances, civil law is beyond the scope of this book.

    Characteristics of a Criminal Prosecution

    A criminal prosecution takes place when the government has probable cause to believe a defendant has violated a federal or state criminal statute, or in some jurisdictions, when prosecuting authority has probable cause to believe that a defendant committed a common-law crime, a tribal law violation, or a local ordinance. Statutes and common-law crimes are discussed in Chapter Two, “Sources of Law”. Probable cause is the bare minimum quantum of proof necessary to initiate a criminal prosecution. It is unethical for a prosecutor to file criminal charges against a defendant unless the prosecutor has probable cause to believe the defendant has committed the crime. See Alaska Rules of Professional Conduct 3.8(a) (2021). The different burdens of proof are discussed in more detail in the next section.

    Parties in a Criminal Prosecution

    The government initiates all criminal prosecutions. A private citizen does not have a right to bring a private criminal prosecution. See Cooper v. District Court, 133 P.3d 692, 697-700 (Alaska App. 2006). If the defendant commits a federal crime, the United States of America pursues criminal prosecution. If the defendant commits a state crime, the state government, often called the State pursues the criminal prosecution. If the defendant is accused of violating a local ordinance, the local political subdivision (e.g., county, municipality, borough, etc.) initiates the prosecution. The suspect charged with a crime is called the defendant and can be an individual, corporation, or other business entity.

    The attorney who represents the government controls the criminal prosecution. In a federal criminal prosecution, this is the United States Attorney. The United States Attorney is appointed by the President of the United States and subject to Senate confirmation. In a state criminal prosecution, this is generally a state prosecutor or a district attorney. In most jurisdictions, the prosecutor works for an elected official who represents the county where the defendant allegedly committed the crime. In Alaska, all district attorneys are appointed by, and work for, the Alaska Attorney General. The Alaska Attorney General is not elected to office but instead appointed by the Governor of Alaska and is subject to confirmation by the Alaska Legislature. Thus, Alaska models the federal system of appointed prosecutors. Further, unlike most states, Alaska state prosecutors have exclusive felony jurisdiction. While several Alaska communities have municipal prosecutors who prosecute violations of city ordinances, only a representative of the Alaska Attorney General may prosecute a felony offense.

    Applicability of the Constitution in a Criminal Prosecution

    All criminal defendants are protected by several specific provisions of both the federal and Alaska constitutions, most of which implicate criminal procedure, not substantive criminal law. For example, a criminal defendant has the right to remain silent, the right to due process of law, the right to be free from double jeopardy, in addition to several others. A complete list of the rights guaranteed by either constitution is beyond the scope of this book, but it is important to understand that these constitutional protections dramatically impact criminal prosecutions. Although a civil litigant has some constitutional protections, they do not cover the same breadth of protection.

    For example, the Sixth Amendment of the U.S. Constitution guarantees a criminal defendant “the assistance of counsel.” This guarantee has been interpreted to mean that all criminal defendants, regardless of wealth, are entitled to be represented by an attorney. If a criminal defendant is facing incarceration, the government must provide the defendant with a court-appointed attorney if the defendant is unable to afford one. See Gideon v. Wainwright, 372 U.S. 335, 344-45 (1963). Generally, attorneys provided by the government are called public defenders (18 U.S.C., 2010; AS 18.85.010 et. seq.). Although criminal defendants are entitled to hire their own private attorney, the government is constitutionally required to appoint one to indigent defendants if the accused faces jail. See e.g., Alabama v. Shelton, 535 U.S. 654, 661-62 (2001). This is a significant difference from a civil litigation matter, where both the plaintiff and the defendant must hire their own private attorneys or represent themselves.

    Purpose of a Criminal Prosecution

    Another substantial difference between civil litigation and criminal prosecution is their respective purposes. One of the central purposes of civil litigation is to compensate the plaintiff for injuries. In contrast, the purpose of a criminal prosecution is to hold the accused accountable for his or her criminal conduct. Although both seek to achieve justice – the former seeks private justice, while the latter seeks public justice. The goals of criminal prosecution are explicitly outlined in the Alaska Constitution.

    Article 1, section 12 of the Alaska Constitution states, “[The Criminal Justice System] shall be based upon the following: the need for protecting the public, community condemnation of the offender, the rights of the victims of crime, restitution from the offender, and the principles of reformation.” These goals form the rationale for criminal punishment, which will be discussed shortly.

    Notice that injury and a victim are not necessary components of a criminal prosecution because punishment is objective; the victim is frequently society in general. Thus, behavior can be criminal even if it is essentially harmless. Society may criminalize conduct even if it does not result in a tangible loss. We will explore this phenomenon in subsequent chapters.

    Examples of Victimless and Harmless Crimes

    Steven is angry because his friend Bob broke his skateboard. Steven gets his gun, puts a silencer on it, and drives to Bob’s house. While Steven is driving, he exceeds the speed limit on three different occasions. Steven arrives at Bob’s house and hides in the bushes by the mailbox and waits. After a short while, Bob opens the front door and walks to the mailbox. Bob gets his mail, turns around, and begins walking back to the house. From the shadows of the bushes, Steven shoots at Bob three different times. Each time he misses and the bullets land harmlessly in the dirt. Bob is oblivious to the entire situation. He does not hear the shots because of the silencer.

    In this example, Steven has committed several crimes: (1) If Steven does not have a special permit to own a silencer for his gun, he has committed third-degree weapons misconduct (a felony); (2) Steven committed a violation (called an infraction) each time he exceeded the speed limit; (3) Each time Steven shot at Bob he committed the crime of attempted murder. Notice that for all three crimes Steven did not commit any discernible harm, and in fact, the first two did not have an individual victim. Common sense, however, tells us that Steven should be held accountable (punished) for his actions.

    Table 1.1 – Comparison of Criminal Prosecution and Civil Litigation

    Feature Criminal Prosecution Civil Litigation
    Initiator of lawsuit Government Plaintiff
    Attorney for the initiator Prosecutor Private attorney
    Attorney for the defendant Private attorney or public defender Private attorney
    Constitutional protections Yes Few

    Law and Ethics: The O. J. Simpson Case

    Two Different Trials—Two Different Results

    O. J. Simpson was prosecuted criminally and sued civilly for the murder and wrongful death of victims Ron Goldman and his ex-wife, Nicole Brown Simpson. In the criminal prosecution, which came first, the US Constitution provided O. J. Simpson with the right to a fair trial (due process) and the right to remain silent (privilege against self-incrimination). In addition, the prosecution had the burden of proving him guilty beyond a reasonable doubt. O. J. Simpson did not have to testify. O. J. Simpson was acquitted, or found not guilty (which is not the same as innocent), in the criminal trial (Linder, D., 2010).

    In the subsequent civil lawsuit, the plaintiffs had the burden of proving liability by a preponderance of the evidence, which is 51–49 percent, and O. J. Simpson was compelled to testify. O. J. Simpson was found liable in the civil lawsuit. The jury awarded $8.5 million in compensatory damages to Fred Goldman (Ron Goldman’s father) and his ex-wife Sharon Rufo. A few days later, the jury awarded punitive damages of $25 million to be shared between Nicole Brown Simpson’s children and Fred Goldman (Jones, T. L., 2010).

    1. Explain the difference between “not guilty” and “innocent.”
    2. Do you think it is ethical to give criminal defendants more legal protection than civil defendants? Why or why not?
    3. Why do you think the criminal trial of O. J. Simpson took place before the civil trial?

    Check your answers to these questions using the answer key at the end of the chapter.


    1. A third classification exists—administrative law, which deals with the enforcement of government regulations, for example, those governing social security, the environment, and mining, to name only three of the multitude of areas in which governments have promulgated regulations.

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