Liable But Not Culpable: Lexplaining The Criminal and Civil Justice Systems, Part 1

It’s May! Well, it’s halfway through May, and so in my infinite wisdom and general niceness, because I’m simply one heck of a guy who cares about those lowly law students, I’ve decided that I’m going to do a bit of a primer on a key difference in law that most people don’t understand. Hell, I’ve met lawyers that don’t really understand it. I know that normal people who get accused of a crime can just hire a marietta lawyer to do all the work for them so they don’t need to know these technicalities but for a lawyer not to know the difference? That’s a red flag! It’s because the difference that we’re talking about here is the difference between criminal culpability and civil liability, and the difference between what criminal intent and civil intent are.

Have I gone long enough without cussing that it won’t show up on the article previews in social media? Thank God. Alright, listen, if you’re a lawyer and you don’t already know this, hand in your law license. There is literally no reason for you to be practicing law. No reason, whatsoever. This is some basic ass stuff, like, so basic we’re talking “pumpkin spice latte wearing ugg boots” levels of basic. There’s absolutely no reason a practicing attorney shouldn’t already be aware of this first-year-of-law-school mess, but it was requested by a reader that I dig into the difference between the two, and that’s what we’re going to do today: the difference between civil liability and criminal culpability.

But before I even start to talk about that, the difference in the state of mind needed and the types of stuff that happens, we gotta make sure the non-lawyers out there understand the difference between criminal and civil, just as much as the lawyers in helltown ohio do. And that means, of course, that we’re going to end up doing a Lexplanation (you like that? I like it. It’s a portmanteau of lex, the Latin for law, and explanation, the English for “talking slowly and loudly to those who don’t understand).

So, I don’t know guys, go get some coffee or something and see what Popehat is up to? He’s normally got some decent stuff on his site. I’ll be over here forcefeeding basic legal knowledge to muggles and walking malpractice suits.

We Have Two Justice Systems.

There are effectively two justice systems in the United States, and then we’re only speaking like really generally. We’re not getting into stuff like immigration and tax courts, which are quasi-criminal and quasi- civil depending on what the specifics of a case are. That’s higher level stuff, and I’m sure as hell not covering it on a website where, just last Friday, I held a discussion about car sex and the possible civil liability that can form from it. We’re gonna keep it fairly simple for the mouth-breathers and just say there are two general justice systems in America: Criminal and Civil. For the next couple days, we’re going to do a high level overview of the differences between the two, starting with the fact that…

Criminal Law Is Mostly Written Down.

Criminal justice looks at determining the guilt or the innocence of people who commit crimes, be they common-law crimes (crimes where the elements of them have been defined through case law) or statutory crimes (crimes where the offense is outlined in the actual written state laws). To start with, though, we can basically say that common law crimes aren’t a thing anymore at the federal level thanks to United States v. Hudson, 11 U.S. 32 (1812), where the Supreme Court stated that Congress had to first pass a statute criminalizing an activity before they could punish it. On a state-by-state level, though, it depends, and some states still use common-law offenses. This is important for our discussion, as we’ll see a bit later, when we talk about the appropriate mental state to be in violation of the law.
For today’s purposes, though, it’s enough to know that there were a lot of common-law crimes out there. I mean a whole lot of them, and the fact that these crimes weren’t written down anywhere meant that a layman could commit a crime and not even suspect they were doing so. Not until they had to hire an attorney similar to this Springfield criminal attorney to represent them. Now, I’m not talking about serious stuff like murder, which everyone knows is wrong, but maybe something like “burglary,” which at common law was defined as “breaking and entering into the dwelling of another, at night, with the intent to commit a felony therein.” That’s an area that created a lot of questions, believe it or not, such as “what is considered a ‘dwelling place’ for the purposes of burglary,” and “what is considered ‘breaking and entering’ and are they two elements or one?” It’s confusing , especially when two courts may look at the same questions different ways, resulting in some messed up interpretations of the same question.

That’s why, way back in 1952, lawyers spent a long time drafting something called the Model Penal Code, then promptly argued about it for the next ten years before publishing it in 1962. This was a proposed codification (fancy asshole speak for “writing down of”) of the most commonly prosecuted common-law crimes, with bright line elements, that legislatures could then take like someone else’s art on the internet and turn into the laws of their state. A lot of states adopted the MPC, at least in part, and the end result is that most of the criminal laws, which were previously common-law in nature, are now written down in the big BOOKS OF LAW that legislatures create and update based on the whims of the voting public. If you’d like more information on this process, I’ll refer you to Schoolhouse Rock, which tends to do a pretty good job of explaining the legislative process in a manner that’ll get it stuck in your head.

So that’s the first important-as-anything distinction: criminal law is, for the most part, written down somewhere in a series of books as actual state laws.

Civil Law Is Written on History Alone.

Unlike criminal justice, civil law is what happens when people ask the court to insert itself into a dispute between two people.

The fact that criminal law is mostly written down somewhere is a huge contrast with civil law in the United States, which isn’t normally written into the statutes. Most of the general principles and major practice areas in civil law are solely based on the common-law, meaning we’re suing people for things in 2018 based on legal principles that were laid down two, three, or four hundred years ago. This means that our case law when it comes to civil matters is going to vary wildly based on where a case is being heard, as every jurisdiction (read, state) is going to have a different history when it comes to how it treats a civil concept.

This is like the very definition of judicially made law, and is why things like your local court of appeals and state Supreme Court elections =matter. Those are the justices that are going to determine how future lawyers are going to have to argue your cases.

Some areas of civil law, however, are so well-settled that we call them black letter law, meaning that the common precepts are such a matter of “no kiddly” that courts almost never go against them. We steal that from the old tradition of setting law books into black letter type, which still continues to this day, to refer to the principles of civil law that are so widely accepted in the common law that nobody goes against them. While some of these black letter concepts are written down in statutes, most of them are written down in things called The Restatements, which are compendiums of accepted civil law on subjects like Torts (injury based civil law), Agency, Property, etc. We’re up to like…the third edition of The Restatements now, although most courts have only adopted the second editions in part, and that should tell you the pure lack of development considering The Restatements have been in publication for like…90 years.

So that’s the first big difference: civil law is based mainly on judicial decisions and widely accepted concepts that we call common-law, which criminal law is, for the most part, statutory law.

Burdens of Proof Differ.

Let’s clear this up right now: anything that isn’t criminal is civil. Criminal means that something happened in violation of the law, while Civil is literally everything else. That means family law, unemployment law, personal injury law, etc. is all civil because it doesn’t involve a criminal violation of a statute or common-law criminal principle.

This is important because in criminal law there’s generally only one burden of proof, and it’s a high bar to pass.

[For the non-legally trained and those who went to an InfiniLaw school, a “burden of proof” is the level to which the party bringing the claim has to convince the trier of fact that the other party did something wrong. I mean, I bet there’s a better explanation for it out there, but we’re keeping this short right now.]

In criminal law, the sole burden of proof that people think of, and really the only one that will apply at the first level when we’re talking about a trial, is “beyond a reasonable doubt.” We could do an entire post about “beyond a reasonable doubt,” and likely will, because it’s a term that has no real definition. Essentially, it is proof of a crime that convinces the trier of fact that there is no other reasonable explanation outside of the accused’s guilty. It doesn’t mean that there is no doubt, but only that, all other things being equal, the evidence of a crime is such that any doubt is not reasonable.

Guys, lawyers argue about the meaning of this all the time, even today. For our purposes it’s enough to know that this is an insanely high burden and is the highest burden available. It’s also pretty much never used in civil cases.

Civil cases instead use burdens of proof described as the preponderance of the evidence or clear and convincing evidence (there are others, but most of those come into play in administrative proceedings and, again, that’s a whole different ball of wax. The law is complicated). Preponderance of the Evidence is essentially a standard that says, based on the evidence presented, it is more likely than not that someone committed the act which gives rise to liability. Clear and convincing evidence, however, is a much higher standard and generally means that the evidence shows to a high probability such that the trier of fact (jury. We’ll just say jury) is convinced of its truthfulness to a high degree (though not to such a point where they have no reasonable doubt).

So, there’s a big difference right there: When someone is charged criminally, the prosecution has to prove guilt to an extent that there is no reasonable doubt about it, while in a civil case a plaintiff only needs to show it is more likely than not (the degree to which they must show it depending on the factors involved) that the defendant is liable.

Which brings us to the other big difference, and our last point for today…

“Guilty” and “Liable” Don’t Mean the Same Thing.

When we’re talking about criminal law, we are specifically talking about one of two outcomes: guilty or not guilty. That’s it. There’s no in-between, and the effect of the outcome is someone walking free or going to jail. The person that brings the charges isn’t a person, but rather the people, because criminal offenses are seen as offenses against the whole of the populace. The state tries cases in criminal law on behalf of the whole of society, and not on behalf of an individual victim. It’s essentially the state saying “You’ve broken our agreement for a cohesive society, now you’re gonna pay.”

Civil law, as I said above, is really one person asking the court to intervene in a dispute between two people and issue a decision. One person has been wronged, and therefore they are entitled to seek that the wrongdoer is held responsible. They get to sue and ask the court, and the jury, to enter a judgment in their favor, be it money, an order telling the other person to not do something, etc. Civil lawsuits, accordingly, don’t deal in guilty or innocence, they deal solely in the realm of liability, which is a fancy way of saying “this person is responsible for that thing.”

These distinctions are present throughout those cases. In criminal law, there are “charges,” in civil law there are “claims.” In criminal law, the state is called the “Prosecution” while in civil law the party bringing the action is the “Plaintiff.” In criminal law, the action starts with a “filing of charges,” in civil law it opens with the “filing of a Complaint.” The two systems are so different, we have two entirely different procedural systems for how each lawsuit is handled, the Rules of Civil Procedure and the Rules of Criminal Procedure.

They’re really different, that’s what I’m getting at.

Conclusion and Next Time

Alright, is all that clear? We understand the basic differences between Criminal and Civil justice? Good. Because next time we’re going to build on this to discuss a more nuanced difference between the two, and that’s the difference in the state of mind needed both to find someone guilty of a crime and to hold someone liable in a civil matter. And trust me, there’s a huge difference between the two.

But we’ve gone on really long today, so for now…I’m the Boozy Barrister, and you have a good Monday.

-BB