You hear it all the time – perhaps at a cocktail party, where you meet a lawyer who introduces himself as a "criminal defense attorney." Or you may come across a "civil law practitioner." But what are the key differences between civil and criminal law? And how do the two areas of law intersect, if at all?

What are the origins of the distinction between civil and criminal law?

We take for granted that if you mow a part of my lawn without my permission, and damage my lawn’s sprinkler system, I can sue you in court – in what is deemed a civil proceeding for trespassing. We also take it for granted that if you enter my garage at night, and I hear the commotion and call the police, you can be prosecuted by the state for criminal trespass (and possibly burglary, or breaking and entering). But when did the separate branches of civil and criminal law emerge? Has American law always maintained separate civil and criminal branches?

A bit of global and historical context is in order. In Iceland, from its founding (around A.D. 930) until the mid-13th century, there was no criminal law; solely private civil law:

  • If you chopped down 50 trees on my property in A.D. 950 Iceland without permission, and I sued you in the local court for a hearing before the local chieftain, and you were found liable, you would owe me compensation for the value of the lost trees.
  • If you then refused to pay the declared amount, I could sue you in a second proceeding for failure to pay damages owed, with the requested relief that you be declared an outlaw.
  • If you failed to defend yourself in this second proceeding, and you were declared an outlaw, I or anyone else (i.e., a bounty hunter) could kill you with impunity. The same procedure applied if you killed my uncle or cousin. In other words, the prosecution of every case was a private matter. (This is really how it worked!)

This system persisted in Iceland until A.D. 1263, when Iceland voted to turn its country over to Norway, at which point the entire country became subject to Norwegian law, thus ending the 300+ year Icelandic experiment of "all law as private law." While this system may sound novel and intensely foreign to our modern-day American legal structures, other Western nations lacked modern-day law enforcement institutions until relatively recent times:

  • France, in the 1600s, was the first Western nation to build a national police force and office of public prosecutor.
  • Britain developed localized parish constables and justices of the peace in the 1700s, but lacked a national police force and Crown Prosecutors until the 1830s.
  • Paradoxically, the colonial United States was far more advanced than its sovereign in its reliance on public prosecutors to uphold the criminal law, likely owing to French and Dutch influences on 17th-century colonies.

Even in the U.S., the distinction between civil and criminal law has not always been absolute. For example, debtors' prisons were prevalent throughout the United States until the mid-1850s; as the term indicates, these were publicly maintained prisons created to house individuals who failed to pay back privately incurred debts. Indeed, most famously, James Wilson, a signatory to the Declaration of Independence, spent time in a debtors' prison in 1797 in Burlington, New Jersey, while serving as an Associate Justice on the U.S. Supreme Court! Fellow Declaration signatory, Robert Morris, spent three years in debtors' prison in Philadelphia from 1798 to 1801. The early advent of U.S. bankruptcy laws eased the need for and lessened public acceptance of debtors' prisons.

Who can initiate a criminal case as compared to a civil case?

Today, only a public prosecutor can file criminal charges, whereas any private practitioner can initiate a civil lawsuit. A very narrow exception exists in the area of special prosecutors. If a public prosecutor is deemed to have a conflict of interest in prosecuting a case, most states permit the appointment of a special prosecutor to handle a criminal investigation and/or a prosecution instead of the public prosecutor. Even then, the special prosecutor is often drawn from the ranks of the state attorney-general’s office, as opposed to a private practice.

The outgoing Cook County (IL) State’s Attorney, Anita Alvarez, withdrew from the prosecution of Chicago police officer, Jason Van Dyke (the shooter of teenager Laquan McDonald), after a group of petitioners filed a motion with the court seeking the appointment of a special prosecutor.

So public prosecutors can only initiate criminal cases?

No. This might seem counterintuitive, but each federal prosecutor’s office, known as a U.S. Attorney’s Office (there are 94 across the country), as well as the Department of Justice headquartered in Washington, have separate civil and criminal divisions. Most county and state prosecutors’ offices are structured similarly.

Civil division prosecutors are empowered to bring civil cases on behalf of the U.S. (or a state or locality, as the case may be) that implicate U.S. property but that do not implicate criminal statutes, such as when a federal prosecutor files a civil suit against a delinquent debtor for defaulting on federal-backed student loans. (Yes, this really happens.)

Do criminal and civil law often overlap?

Occasionally they do. By way of example, there are separate civil and criminal provisions under federal law for government contracting fraud and for tax fraud. At times, a case that starts out as a federal civil matter alleging fraud by a government contractor morphs into a federal criminal case (or in the tax context).

It is unethical for a private civil attorney to threaten an adversary with criminal sanctions in the course of litigating a civil dispute in an effort to gain an advantage in the civil litigation.

In all likelihood, you are familiar with the term "contempt of court." But luckily for you, if you are found in contempt of court during an ongoing civil proceeding, this will typically be treated as a civil matter (punishable by sanctions within the context of the ongoing lawsuit, but not punishable via prison as a criminal matter). This is an area of the law where civil and criminal law do not typically overlap.

What are the differences in the standard of proof?

  1. In civil cases, a plaintiff is required to prove their case by a preponderance of evidence.
  2. By contrast, in criminal court, the prosecutor must prove the criminal violation with proof beyond a reasonable doubt. Thus, in the OJ Simpson saga, OJ Simpson was found civilly liable by a civil jury in February 1997 for the unlawful killing of Nicole Brown Simpson and Ronald Goldman, whereas – as we all know – a criminal jury notably returned a verdict of "not guilty" in 1995 against Simpson.

Are there any differences in the decision-making processes of a civil jury as compared to a criminal jury?

Yes, in many states:

  • In 48 states, in order to reach a finding of criminal liability, the jury must return a unanimous verdict.
  • Two states – Louisiana and Oregon – permit felony criminal convictions on less-than-unanimous verdicts.
  • In 32 states, a jury may reach a civil finding of liability based on a non-unanimous verdict if supported by a supermajority (with the requirement ranging from two-thirds to five-sixths of the jury).
  • The remaining 18 states require unanimous jury verdicts even in civil cases.

The above article does not provide legal advice, and instead provides general information. None of this information is tailored to any specific litigation to which you may be a party.