2. Criminal versus civil statutes: the penal code

When the government seeks to protect the peace or safety of its citizens and determines that punishment by imprisonment, fine or death is appropriate to ensure such peace and safety, then it provides for such punishments in the law it passes and that law is considered part of the criminal law (also known as the Penal Code.) The key aspect is that the State itself seeks to enforce the law against an individual party and that imprisonment, fines or other forms of state sponsored punishment are imposed if the State prevails. Laws passed in which individual citizens seek to prosecute or defend their various rights /or obtain monetary or injunctive relief is civil law and part of the Civil Code.

The same act may give rise to both criminal and civil liability. Thus, the State may determine that driving under the influence of an intoxicating liquor is sufficient danger to society that if one is found guilty of driving while intoxicated one faces fines and possible imprisonment. That same act, however, could result in a civil suit being filed by an individual harmed due to the "drunk driving" in which the State would not be directly involved. For example, a drunk driver hits and injures an individual. The State shall seek to imprison or fine the accused and the person injured will probably file a separate action to seek monetary damages against the individual. (See our web article on Torts: Negligent and Intentional.) Another example is fraud, which may be a crime to be punished by the State and also a cause of action brought by the individual defrauded seeking to obtain compensation for the harm caused.

It is to be noted that the individual may not bring his or her action in conjunction with the criminal case: unlike much of the world, the criminal trial only allows the state versus the accused and individuals who are victims of the crime seeking compensation must bring a separate civil action.

It is also to be noted that the criminal trial is remarkably different from a civil trial. The reader is directed to the web article The American System of Litigation for a description of the methods and tools available in a civil trial. The criminal trial proceeds with entirely different procedures; for example limited discovery in a criminal case is available to the defense but almost no discovery is available to the State due to the Constitutional right not to incriminate oneself (the Fifth Amendment of the Bill of Rights) prohibiting the government from seeking to force the defendant to produce any incriminating evidence. This right leads to other differences: in a civil trial one can call any witness, including your opponent, but in a criminal trial, the government may not call the accused to the stand to be cross examined, again due to the Fifth Amendment right against self incrimination. However, if the defendant voluntarily takes the stand to present his or her side of the story, the government is then allowed to cross examine the defendant as long as it wishes. Recall that O.J. Simpson did not take the stand to defend himself and the State could not force him to testify.

Another difference lies in the proof needed to win your case. The burden of proof in a civil matter is that the plaintiff must prove its case by a preponderance of the evidence ("more likely than not") and need not get a unanimous verdict. In a criminal trial, as already discussed, the government must prove its case by a unanimous verdict in most courts and must prove it s case beyond a reasonable doubt to a moral certainty, a much higher burden. (Which is why O.J. Simpson was found not guilty...but a year later lost a massive civil verdict of millions of dollars when the parents of the victims sued him in civil court...it is simply much easier to win a civil case than a criminal case.)

We thus have two entirely different systems of statutes and procedures in the criminal and civil courts with the citizens being relegated to enforce their various rights against each other in the civil courts under the various Civil Codes, while the government seeks to enforce its Penal Code entirely in the criminal courts.