Criminal versus Tort

Brien Roche

Tort law is a branch of what is called civil law.  Civil law is distinct from criminal law.  Criminal law involves instances of where a person or company breaks a criminal statute. That person is then either arrested by the police or indicted by a grand jury for that. In a criminal case the state or the U.S. is the party bringing the action against the person doing the wrong.  That person is referred to as the defendant.  The criminal action may cause the person either to be imprisoned or fined if found guilty. 

These actions are governed by a standard of proof referred to as proof beyond a reasonable doubt.  That is a much higher standard than what applies in a civil case.  The reason for that higher standard is that in a criminal case a person’s freedom is at stake. Therefore the standard of proof is higher than what exists in a civil case.

Criminal versus Tort In Large Measure Depends on Intent

In a civil case, whether it is a tort action or a contract action, the standard of proof is proof by a greater weight of the evidence, i.e. greater than 50%, so to speak.

Of course, in quantifying proof it is difficult to apply a number to it. It is simpler for a jury to make decisions if they can think of the standard of proof as having some bearing to a number. Call, or contact us for a free consult.

Criminal Versus Tort-Standard of Proof

The standard of proof in criminal cases, referred to as proof beyond a reasonable doubt, does not have any number that can be applied to it. It is said that proof beyond a reasonable doubt is much more than 50%, i.e. considerably more than the greater weight of the evidence. 

Scienter is a term that relates to what the wrongdoer knows. Certain types of claims require proof of scienter.  For instance, in a fraud claim scienter must be proved.  Scienter in that context means that the person doing the fraud must have the intent to make the false statement.  That intent is the scienter.  That element of intent or scienter may exist in certain other claims called intentional torts. These include the intentional infliction of emotional distress and the intentional interference with a business relation.  Those are all claims that require proof of some intent by the wrongdoer.    

The concept of scienter is most often found in criminal cases. Most crimes involve an element of intent or scienter.  There are some exceptions to that in the criminal law. For instance, the traffic laws do not involve intent. It does matter if you intended to run the red light. The fact you ran the red light is enough to prove your guilt.

Criminal Versus Tort-Torts With Intent

In civil cases, unless you are dealing with an intentional tort, the intent of the parties is of no import. With intentional torts the intent of the person doing the wrong must be looked at. The jury or judge has a right to assess this in order to gauge the level of fault. This must be known in order to award punitive damages. Punitive damages are distinct from compensatory damages. Punitive damages are intended to punish. Compensatory damages simply compensate the injured party, i.e. they are to make that person whole in the sense of returning her to her pre injury condition as best as money can do that.

There may be some overlap between criminal law and tort law.  For instance, certain criminal acts may also be called tortious, i.e. being a basis for a tort claim.

If someone punches you in the nose without cause, then that conduct may be an assault and battery which is criminal.  It may also be an assault and battery in tort law. This may give you a basis for suing that person civilly to recover what your damages are.

In criminal law the purpose of a charge is to punish the wrongdoer typically either through prison or a fine or both. The threat of prison and the loss of freedom is what invokes the rights that are accorded to us under the Bill of Rights  of the US Constitution and the state constitutions. 

Punitive Damages

In tort law the purpose of filing a lawsuit is to award the injured party money for the loss suffered. The exception to that is where there is a basis for a punitive claim. In that case the judge or jury is allowed to punish the wrongdoer by a judgment for punitive damages. Punitive damages are designed to punish and deter bad conduct.

The purpose of a criminal action is to punish and deter bad conduct. Except for punitive damages the purpose of a tort action is to compensate.

See the personal injury page on this site for more information on tort actions.

For more information on this concept you may want to take a look at a book that I have authored entitled Law 101 and also another article on this website dealing with intentional torts  See also the pages on Wikipedia dealing with intentional torts. Call, or contact us for a free consult.