THE DIFFERENCE BETWEEN CRIMINAL AND CIVIL CASES:  A COSTLY LESSON FOR RECENT IMMIGRANTS*

by

Into Bo Champon, Esq.***

(March 2002)

            During the 10 years of serving many immigrant communities, I received telephone calls from a large number of recent immigrants asking me why the government was still pursueing the criminal case against him/her when the victim(s) no longer wanted to pursue the case.  Some of these immigrants even mistakenly thought that the government was out to get them.  Hopefully, this article will help explain the government's action(s).

            Unlike many other systems of justice, the American System of Justice distinguished between criminal and civil cases.

            The more well-known distinction between a criminal case and a civil case is probably the levels of the burden of proof.

            In a civil case, the plaintiff (the party who initiated the law suit) has to prove the case by a preponderance of the evidences, i.e., more than 50%.  In a criminal case, the government has to prove the case beyond a reasonable doubt.

            For instances, the jury in the O.J. Simpson criminal case concluded that the government did not prove beyond a reasonable doubt that O.J. Simpson committed the murders and found that he was not guilty.  Accordingly, the judge ordered O.J. Simpson release from jail.  However, the jury in the civil case brought by the heirs-at-law of the victims against O.J. Simpson concluded that the heirs-at-law of the victims proved their case by a preponderance of the evidences and returned a (monetary) verdict in their favor.

            The lesser known distinction between a criminal case and a civil case is the parties to the action or case.

            Generally, a criminal case is a law suit initiated by the government against the accused(s) or the person(s) who allegedly committed the crime(s).  In most criminal cases, the government seeks to put or keep the accused(s) in jail.  A typical civil case is a law suit initiated by a private party(ies) against another private party(ies) and generally seeks monetary compensation.  Sometimes, the attorney general of a state or the federal government may bring a civil law suit in the form of a class action to further the public interest on behalf of a large number of similarly-situated people who in most cases would not have brought the case themselves because individual action would not be cost-effective or too costly.

            As the government is the party which initiated the criminal case, it may continue the case even if the victim no longer want to pursue the case if it does not need the victim to prove its case.

            For example, a man walked into a night club, saw his wife with a lover, pulled out a gun and shot at his wife in front of many other customers.  He missed.  When the police officers arrived, the wife and numerous customers who witnessed the incident, gave the statements to the officers.  The man was arrested, charged with attempted murder, and put in jail.  The wife later felt guilty and wanted the man release from jail.  What can she do?  Not much!  The government probably will not agree to dismiss the case as it already has other witnesses (other customers who witnessed the incident).

            What if the man pulled out the gun and threatened to shoot his wife after she returned home and no one witnessed the incident?  If the wife already gave the statement to the police officer(s) right after the incident but later felt guilty and no longer wanted to press charges against the man, the government may subpoena the wife to testify against the man.  If the wife refuses to do so, she may be held in contempt of court.  However, it is unlikely that the government will pursue the case without any other evidences.

            What if the man kicked the wife and broke her fingers after she returned home and no one witnessed the incident?   The government probably will pursue the case as it has the evidence of the wife's broken fingers and her statement to the police officer right after the incident.

            A more common problem however, started when a spouse called the police officer and made up a story that his/her spouse hit him/her after heated arguments.   After the police officer took the statement, arrested and took the accused spouse to jail, the reporting spouse felt guilty and would like to withdraw the charge.  In the meantime, an aggressive prosecutor already filed the complaint against the accused spouse.  This can end up being a costly lesson for the family.

            The government takes domestic violence cases very seriously.  In some major cities such as Los Angeles, the District Attorney office assigns a special unit to handle this type of matters. A guilty plea would require the defendant to pay costly fines and restitution and to complete costly classes and time-consuming community  or Cal Trans services and frequent court appearances even for a first offense.  If the accused spouse is not a United States citizen and has a prior conviction including unrelated conviction, he/she may be deported.