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Standards of Proof in Civil vs. Criminal Cases


By Brian C. Dever, Esq.

A very difficult concept for most non-lawyers, and perhaps lawyers themselves, is the standard of proof between a civil claim and a criminal charge.  Specifically, in a criminal case the jury or judge must find that the accused committed the alleged crime “beyond a reasonable doubt”.  That is considered a very high standard.  It is a standard that leads most people who are following criminal trials to be horrified that a jury found the accused not guilty as they could not find her guilty beyond a reasonable doubt.  Who will ever forget the OJ Simpson case.  Everyone who followed the case in the News assumed that Simpson was guilty.  However, when the defense lawyer, argued “If the glove doesn’t fit you must acquit”, at least some of the jurors found that the gloves did not fit Simpson to be a basis for being unable to convict him as they had doubt.  More recently, in the news has been the Strauss-Kahn/Hotel Housekeeper claim.  In that case, the former french politician Strauss-Kahn was accused by a housekeeper at a New York Hotel of assaulting her in a sexual encounter.  The District Attorney’s office on the criminal side of the case declined to bring charges against Strauss-Kahn as they did not think that there was evidence to convict him based upon this “beyond a reasonable doubt” standard.  However, that did not prevent the civil lawyers for the victim of bringing a civil claim against Strauss-Kahn for the reported assault.  In the civil case, the standard of proof is a preponderance of the evidence.  That is, weighing of the scales of justice.  Do the scales tip ever so slightly in the victims favor, that she is able to prove by a preponderance of the evidence the allegations that Strauss-Kahn committed an assault upon her.  Despite the fact that the criminal case had been dismissed, the victim was able to proceed forward on the civil claim because it was easier to meet the civil standard.  Although that case was not litigated to conclusion, the lawyers and/or the victim were able to successfully negotiate a settlement of that claim.

While the OJ Simpson case and the Strauss-Kahn case grab headlines, the difference between criminal cases and civil cases come up all the time.  In the past year I have had at least four claims that have corresponding criminal actions associated with them.  In one claim, the local District Attorney’s office where the accident occurred originally brought charges but ultimately dropped the ball and allowed the charges to be dismissed.  That did not stop me/preclude me from bringing the civil claim against that individual.  The reality is that it had little effect on the civil matter. Had the Defendant ultimately pled guilty to charges related to the motor vehicle accident, that plea would have some effect on the civil matter but not a preclusive effect.  Similarly, in another case the driver of a vehicle was convicted of motor vehicle homicide after pleading guilty to the horrific crime.  The leaning case that would govern the admissibility of that plea is the Aetna Casualty Insurance Company v Joseph Niziolek, 395 Mass. 737 [1985].  Up until the Niziolek case, Massachusetts had long followed the “traditional rule” that a defendant convicted of a crime is entitled to re-try the question of whether he actually committed that crime when that issue arose in a civil proceeding to which the Commonwealth was not a party.  The courts had long taken the position that the criminal judgment was not even evidence against the criminal defendant on the merits of the civil case.  In the Niziolek case, the Massachusetts courts reversed that position and held that a party to a civil action against a former criminal Defendant may invoke the Doctrine of Collateral Estoppel to preclude the criminal Defendant from re-litigating issues decided in the criminal prosecution.  However, the courts in Niziolek did distinguish between a case brought to a criminal conclusion by the jury with a conviction and a plea of guilty with a conviction entered.  The court ruled that because there have been no findings, a conviction after a plea of guilty does not present the possibility of inconsistent factual determination.  For collateral estoppel purposes, those facts justify treating a conviction after a guilty plea differently from a conviction after a trial.  They go on to say that “what we emphasized is that is the Defendant’s guilty plea is not without consequences in a subsequent civil litigation.  The Defendant’s guilty plea and other admissions made during the plea taking colloquy is admissible evidence in the civil litigation”.

This decision also has had ramification regarding homeowners’ insurance companies’ duty to defend the homeowner from claims made against them for intentional/criminal acts.  In Metropolitan v Morrison, 460 Mass. 352 [2011], the Massachusetts courts analyzed whether the homeowner insurer could deny coverage and/or duty to defend the homeowner for intentional acts done by an occupant of the home causing harm to another.  Ultimately the issue is whether the insured intended to cause the harm, not just an intention to commit the act which caused the harm.

The significance of the Niziolek case to civil attorneys is that you must do the preparation work.  You must get the criminal conviction and you must then take the depositions of the Defendant in those cases in order to be ready to prove your case at the time of trial.  The significance to homeowners is that if you get sued for intentional acts committed against someone else, your homeowners policy may cover you.

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