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  • Writer's pictureBrian R Boney

Criminal vs Civil: Clear vs. Cloudy

Updated: May 26, 2023

A criminal trial is pretty straight-forward, while a civil trial is pretty fuzzy

Courts in the United States can be divided into two types – criminal and civil. While they each have some similarities, such as using the same rules of evidence, the distinction is pretty simple – in a civil trial, you’ll be made to do something or to pay something; in a criminal trial, you’ll be made to pay a fine and/or go to jail.

Criminal trials may appear complex, but they’re actually pretty straight-forward, which is why they make for good television. You either committed a crime, the description of which is pretty clear, or you didn’t. Here’s what the Colorado criminal statute for first degree burglary, with its different elements, looks like:

"A person commits first degree burglary if the person (1) knowingly enters unlawfully, or remains unlawfully after a lawful or unlawful entry, in a building or occupied structure (2) with intent to commit therein a crime, other than trespass as defined in this article, (3) against another person or property, and (4) if in effecting entry or while in the building or occupied structure or in immediate flight therefrom, the person or another participant in the crime (5) assaults or menaces any person, the person or another participant is armed with explosives, or the person or another participant uses a deadly weapon or possesses and threatens the use of a deadly weapon."

To win a conviction here, a prosecutor would have to prove to a jury – which determines only your guilt, not your punishment -- you committed each of the five elements listed in the statute. If he can’t, then you’ll go free. If he can, the judge presiding over your case will decide your sentence based on several factors. The prosecutor is a government employee upholding the criminal laws of the state.

In contrast, civil trials are much less clear. For example, here’s the elements for negligence, which is the basis for every car crash claim:

To prove negligence occurred, a person who is injured (the plaintiff) must prove:

  • that the person being sued (the defendant) owed a duty of care to the plaintiff;

  • that the defendant breached that duty of care;

  • that the defendant’s breach was the cause of the injury; and

  • that the plaintiff sustained injuries that can be quantified in monetary damages.

These concepts are much less clear than in a criminal case. And where you would go to jail as a defendant in a criminal case, in a civil case it’s most likely you will have to pay the plaintiffs enough money to make them whole. Or, you may have to perform part of a contract – something you really don’t want to do.

The other difference is the burden of proof that’s involved. In a criminal trial, the prosecutor must convince each juror you committed the crime beyond a reasonable doubt, which is a pretty tough burden. On the other hand, in a civil trial, the plaintiff must prove the defendant’s liability only by a preponderance of the evidence, or that it’s more likely than not the defendant did as alleged.

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