Similarities & Differences Between Civil & Criminal Cases

Judge's gavel in front of legal library
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Criminal law seeks to punish behavior that society in general views to be harmful or undesirable. In contrast, the civil justice system is concerned with individual parties who want to be compensated for harm or to prevent continuing harm at the hands of another. Activities such as assault and fraud can be addressed in both the civil and criminal arenas. Whether you're a victim or alleged perpetrator, the procedures you navigate are affected by the differing goals of the criminal and civil law systems.

Harm as a Prerequisite

The phrase "no harm, no foul" does not apply in a criminal case. For example, you can be prosecuted for driving while intoxicated even if you didn't hurt anyone else while driving. In contrast, the complaining party in a civil suit normally must have suffered damage, such as injuries from a wreck or the extra costs of buying a product that the seller agreed but failed to deliver. Some civil cases can be brought without someone suffering harm. For example, a government agency can sue to make you bring your building or business in compliance with environmental or safety laws.

Rights as Victim

Even though you're a crime victim, the prosecutor represents the public -- not you. Therefore, the prosecutor controls the case. She decides matters such as whether to:

  • charge the defendant and what crime to charge
  • offer, negotiate or accept a plea
  • proceed to trial
  • dismiss the charges

This means a prosecutor doesn't have to dismiss the case even if you request it. In the civil arena, you must get the lawsuit started and you decide how far to take the case -- unless the court dismisses it.

Answering the Charges

You can plead not guilty to a crime by expressly saying so or by remaining silent. So long as you don't plead guilty, you can fight the charges. In most civil cases, you can lose the right to contest the claim against you if you fail to file an answer to the lawsuit within a specified period of time.

Defending With a Lawyer

You're entitled to have a lawyer in both civil and criminal cases. In civil cases, unless your insurance company is paying for the defense, you're responsible for selecting, hiring and paying the attorney. For a criminal case, the court will appoint you a lawyer if you can't afford one. Depending on your state, court-appointed attorneys are not necessarily free. If you're convicted, the court can make you repay the state or county for the lawyer.

Discovering the Opponent's Case

Discovery is the tool box for a party to gather evidence from the opponent and learn the basis, strengths and weaknesses of the opponent's case. Civil litigants have broader rights -- and duties -- in discovery than criminal defendants. The American Bar Association explains that rules for civil cases seek to level the playing field between or among the parties, while criminal procedure seeks to protect the defendant's right to a fair trial. Parties in civil cases usually must reveal information even if it hurts the case -- unless the information is protected from disclosure by, say, the attorney-client privilege. Criminal defendants do not have to do so, but can get from the prosecutors evidence that tends to exonerate them or show that the prosecution witnesses are untrustworthy. Depending on your state, you must disclose to the prosecutor your witnesses, evidence upon which you intend to rely at trial, and whether you claim an alibi -- i.e. you were somewhere else when the crime took place.

Testifying Against Yourself

The Fifth Amendment of the U.S. Constitution says you do not have to make statements that would show you're guilty of a crime. You can invoke this protection in both civil and criminal cases, but there are consequences to doing so in a civil case. Your opponent can argue that your silence speaks volumes about the lack of evidence to support your claim or defense. In fact, a court can strike a claim or defense in a civil case where the party withholds relevant information on the grounds of self-incrimination. In a criminal case, the prosecutor cannot use the fact you said nothing about the case or did not testify to show your guilt.

Trying the Case

Right to a Trial

In most civil cases, you have the right to a trial unless the court decides beforehand that you cannot muster sufficient evidence at trial to overcome a claim or defense. A court can throw out a prosecution where there is not enough evidence that the defendant committed a crime. If you're a criminal defendant, a court can bar you from raising a defense such as self-defense or insanity if you lack any evidence to support it. However, you have an absolute right to a jury trial -- even if the evidence of your guilt is overwhelming.

Burden of Proof

In a criminal case, the prosecutor must prove beyond a reasonable doubt that you committed the crime for which you're charged. In contrast, the complainant in a lawsuit need only show that the opponent more likely than not is responsible for the wrongful behavior.

Challenging the Verdict

In a civil case, the losing party -- whether plaintiff or defendant -- can challenge the verdict. However, in a criminal case, the prosecutor cannot appeal or have a not guilty verdict set aside -- even if the proof of guilt seems indisputable or overwhelming. A criminal defendant can appeal a guilty verdict in a trial, but normally cannot appeal after pleading guilty except on the grounds of (depending on your state):

  • excessive or unlawful punishment
  • illegally obtained evidence 
  • ineffective assistance of the lawyer

In federal courts, a defendant may plead guilty on condition that a successful appeal will strike the plea.

Making the Victim Whole

Both civil and criminal law offer monetary relief for victims. Whether you can collect depends on whether the defendant has enough money or property to pay. Depending on your state, you can enforce either a civil judgment or criminal restitution order through garnishing a portion of the defendant's wages or having the sheriff seize property. If you're a victim of crime, you may even get the prosecutor to have the criminal's property forfeited.


  • In both civil and criminal cases, the appealing party must show that the court committed legal error, such as in allowing or excluding evidence, or that there was not enough evidence to support the verdict.

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