PDA

View Full Version : Civil & Criminal Acts


L S
05-22-2004, 08:41 AM
When does a civil problem turn criminal? Are there any laws that define
this?

TY

Jonathan Sachs
05-24-2004, 05:13 PM
"L S" <lost-in-shadows@webtv.net> wrote in message
news:4dpua0p8c50lg0dtnn0v3mfvoharlvg5bh@4ax.com...

When does a civil problem turn criminal? Are there any laws that define this?

Civil and criminal law are essentially separate matters. It's perfectly
possible for the same act to give rise to both types of actions. This is
common in securities fraud, where the FTC pursues a criminal action against
a corporate officer or board member while stockholders pursue civil actions
against him (or her). O.J. Simpson was a defendant in both criminal and
civil actions for the same incident; he was acquitted of criminal charges
but found civilly liable.

Dan Evans
05-24-2004, 05:13 PM
On Sat, 22 May 2004 10:41:02 -0400, lost-in-shadows@webtv.net (L S)
wrote:

When does a civil problem turn criminal?

An act is criminal when there is a statute that provides criminal
penalties for the act. Otherwise, any remedy is civil.

Are there any laws that definethis?

Yes.


*Dan Evans
*Author of the Tax Protester FAQ
*http://evans-legal.com/dan/tpfaq.html

Gerald Clough
05-24-2004, 05:14 PM
L S wrote:
When does a civil problem turn criminal? Are there any laws that define this?

Civil problems don't spontaniously "turn criminal." Civil action grows
out of an aledged tort, a tort being generally a combination of duty to
perform, failure to perform and some harm being caused.

A criminal action grows out of conduct, by omission or commission, that
equates to the elements of a criminal offense, with whatever degree of
culpability is required for the commission of that offense.

Some criminal offenses grow out of required conduct in what are
otherwise civil affairs. Hiding property secured by a lender's interest,
for instance.

Many criminal acts are also civil torts when there is a victim. Some
things that are first approached as civil by a plaintiff may end up also
being prosecuted as a crime. Some conduct in the course of civil
litigation may be criminal, such as perjury.

If you will say what sort of situation prompts the question, you'll no
doubt get a more specific response.

--
Gerald Clough
"Nothing has any value, unless you know you can give it up."

Michael Jacobs
05-24-2004, 05:14 PM
lost-in-shadows@webtv.net (L S) wrote in message
news:<4dpua0p8c50lg0dtnn0v3mfvoharlvg5bh@4ax.com>...

When does a civil problem turn criminal? Are there any laws that define this?

I'll try to answer but your question is a bit fuzzy and based on a
wrong assumption: the "problem" doesn't "turn" at all; rather, the
bottom line is, many wrongful acts are _both_ civil wrongs (torts),
and criminal offenses, from the get-go, whether they are prosecuted as
such or not. Some wrongs are only one or the other, and won't ever
"turn" no matter what twists fate takes. It depends.

The criminal law consists of offenses against the interests of the
State, i.e. things that the government has determined (either through
longstanding common law, or by a statute passed by the legislature and
signed by the governor or president) are harmful to the general public
safety, health, and welfare, and thus should be forbidden. In the USA
system, any thing that is not specifically forbidden is not a criminal
offense; the government can't make up laws after the fact ("ex post
facto") and apply them to _you_, although if you think up a creative
way to hurt somebody that isn't criminally illegal yet, they can
certainly pass a law to prevent you, or _other_ people from ever doing
that again. Conviction of a criminal offense, in USA, requires the
State to prove to the factfinder (judge or jury), "beyond a reasonable
doubt", the accused's guilt of all the required elements of the
specific offenses charged. The State pays the costs of prosecuting a
criminal action by hiring prosecuting attys and their staffs as well
as by hiring public safety officers and their staffs (police, building
inspectors, environmental inspectors, health inspectors, etc.) to
pro-actively educate the public and prevent violations, as well as to
cite and/or arrest suspected violators and present their charges (and
the evidence supporting them) to the State's attys, who will then
decide whether to prosecute or not. If jail time is a possibility,
and if the accused is too poor to afford a lawyer and so requests, the
US Constitution also requires the state to hire a lawyer for him. A
conviction of a criminal offense leads to a sentence which, in USA,
generally consists either of a money fine, payable to the State
(and/or an order of restitution, payable to the victim), a period of
probation with or without certain conditions, or a period of jail
time, or some combination, all of which will be imposed and enforced
by employees of the State, using physical force if necessary. (The
death penalty, obviously, is the extreme application of the State's
right to use physical force, in certain cases, and which should have
procedural protections commensurate with the severity of the possible
penalty). You probably know all that stuff already. The State and
its agents, of course, are also required to comply with the law, and
if they fail to act in accordance with law and by so doing harm the
interests of the one they accused, they may also be either criminally
prosecuted by the State, or civilly sued by their victims.

The same act which is a violation of the criminal law can also be a
civil wrong, or "tort", if it harms the liberty, safety, or property
interests of specific other persons and not just the general society
as a whole. They are overlapping, not mutually exclusive concepts,
but there are some acts that are criminal although not tortious
(personal use of controlled dangerous substances, for example, if you
don't hurt anybody as a result -- nobody's going to sue you for toking
a joint in your living room while watching "Bedtime for Bonzo") and
some that are tortious but not criminal (most medical malpractice, for
example -- they don't arrest a doctor when the patient dies due to a
medical mistake). Some acts, like a traffic collision, assault, or
homicide, can result in both civil and criminal liability for the same
act.

Like the criminal law, what constitutes a basis for civil liability
can be set by either the common law, or a statute. Those other
persons whose interests were harmed then have the option, on their own
thru a private atty, to "sue" (that is, to file a civil action
against) the alleged wrongdoer claiming money damages, or seeking
equitable (non-money) remedies such as a cease and desist order, or an
order assigning title to property or affecting personal status issues,
and so on. The persons who file a suit demanding a remedy, called the
"plaintiffs", may also be subject to countersuit from the persons they
sue (the "defendants"), which is one difference from criminal
procedure (you can't countersue the State in a criminal prosecution --
if you _do_ believe that you should have a civil remedy for wrongs
committed by the police, that's a separate action). Another
difference is that in most cases civil liability only needs proof by a
"preponderance of the evidence" of all the required elements of the
claim, meaning that it has been shown to be more than 50/50 likely,
although some quasi-criminal causes of action (such as fraud, libel,
RICO violations) or those seeking equitable remedies affecting family
status, require "clear and convincing" evidence. The winner in a
civil lawsuit gets a piece of paper called a "judgment", which says
who won or lost, and what the loser is required to do (if anything).
A civil judgment is not self-executing, but if the loser refuses to
comply with its terms, the winner _can_ go back to court and ask that
the physically coercive power of the State be used to help enforce the
judgment (seizing and selling the debtor's property, arresting him and
requiring him to answer questions about where his money is, etc.).
If there is insurance covering that liability, the insurance company
usually just pays as soon as the judgment is entered (or after an
appeal, if they take one) and it is not then necessary for the
winner's atty to request the State to use those coercive enforcement
techniques.

One could argue that the whole point of the law as a tool for ordering
social conduct -- the idea of having predictable, knowable rules set
in advance, as far as that is possible -- is to encourage right
behavior and discourage wrong behavior, as determined by the society
that sets the laws. Putting aside the huge, separate question of what
a moral person should do if confronted by a law he perceives as wrong,
the simple truth is that if one wants to avoid legal trouble, one
strives to do what is right in the eyes of the law, civil and
criminal. If one knowingly or negligently does something wrong, one
runs the risk of either criminal prosecution, or a civil lawsuit by
the injured victim, or both, depending on the discretion of the
prosecutor, and the zeal of the victim as advised by his private atty.
There's no bright line separating the two.

--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult a lawyer in a private
communication.

Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300

News Subsystem
05-24-2004, 05:14 PM
lost-in-shadows@webtv.net (L S) wrote in
news:4dpua0p8c50lg0dtnn0v3mfvoharlvg5bh@4ax.com:

When does a civil problem turn criminal? Are there any laws that define this? TY

An act is criminal when it violates a criminal statute. A problem can
simultaneously be civil and criminal. For example, a punch to the face is
both the tort of battery and the crime of assault.

A breach of contract could be a civil matter, but if the contract was
entered without any intention of performing, it could violate a criminal
fraud statute.

Paul Cassel
05-24-2004, 05:14 PM
L S wrote:
When does a civil problem turn criminal? Are there any laws that define this?

When the action violates statute or regulation. The law itself defines what
is illegal. For example, dialing a wrong number in my locale isn't illegal.
Constantly dialing a person with an intent to harass is. The phone call
action is the same, but the law on harassment defines when the call(s) go
over the line into illegality.

You're going to have to get a lot more specific to get a more on point
answer.

-paul
ianal

Stan Brown
05-27-2004, 06:09 AM
"Thomas Anantharaman" <tsa@biostat.wisc.edu> wrote in
misc.legal.moderated:
Similary, out of state moteriststried by a Judge in traffic court appear to be convicted at much higherrates than local motorists

Higher than 99.99%? Surely not!

--
If you e-mail me from a fake address, your fingers will drop off.

I am not a lawyer; this is not legal advice. When you read anything
legal on the net, always verify it on your own, in light of your
particular circumstances. You may also need to consult a lawyer.

Stan Brown, Oak Road Systems, Cortland County, New York, USA
http://OakRoadSystems.com

Arthur L. Rubin
05-27-2004, 06:09 AM
Thomas Anantharaman wrote:
Michael Jacobs wrote:
lost-in-shadows@webtv.net (L S) wrote in messagenews:<4dpua0p8c50lg0dtnn0v3mfvoharlvg5bh@4ax.com>...Conviction of a criminal offense, in USA, requires theState to prove to the factfinder (judge or jury), "beyond a reasonabledoubt", the accused's guilt of all the required elements of thespecific offenses charged. 1. In the USA this is only true if the possible penalty is jail time, otherwise the state is free to prosecute the case as a civil offense (eg traffic court fines or civil forfeiture) with a lower burden of proof.

Wrong. Traffic court fines are subject to the
"beyond a reasonable doubt" standard in most states -- it's just
that judges don't think it "reasonable" that a police officer
would lie. Civil forfeiture is a special case, in that the
civil action is taken against the property -- sometimes with
notification of the owner. There are some other cases in which
the State can file a civil suit against an indiviual where another
individual could not, but there is (at least in California and
Arizona) a clear distinction between criminal and civil matters.

--
This account is subject to a persistent MS Blaster and SWEN attack.
I think I've got the problem resolved, but, if you E-mail me
and it bounces, a second try might work.
However, please reply in newsgroup.

ptsc
06-01-2004, 02:59 PM
On Thu, 27 May 2004 08:09:51 -0400, cj.green@worldnet.att.net (Christopher
Green) wrote:

Thomas Anantharaman <tsa@biostat.wisc.edu> wrote in messagenews:<a3o7b01bhmjtg9443264opt901pk85o5tt@4ax.com>...
Michael Jacobs wrote:
lost-in-shadows@webtv.net (L S) wrote in messagenews:<4dpua0p8c50lg0dtnn0v3mfvoharlvg5bh@4ax.com>...Conviction of a criminal offense, in USA, requires theState to prove to the factfinder (judge or jury), "beyond a reasonabledoubt", the accused's guilt of all the required elements of thespecific offenses charged. 1. In the USA this is only true if the possible penalty is jail time, otherwise the state is free to prosecute the case as a civil offense (eg traffic court fines or civil forfeiture) with a lower burden of proof.
While this is possible, and many states do so, there is also theconcept of "petty crimes" (such as infractions in California), whichare typically tried before a judge and in which some of the proceduralsafeguards (such as the right of the indigent to be represented atpublic expense) are relaxed or omitted. In some states, and underFederal law, "petty crimes" can be crimes for which jail time is apossible penalty. "Beyond a reasonable doubt" is still the standard ofproof for such crimes, but reasonable doubt in the mind of a judge whohas heard all the excuses hundreds of times may be much harder toraise than reasonable doubt in the collective mind of a jury.

Do you have a cite for that? I thought that Argersinger v. Hamlin did away with
the concept of "petty crimes" (involving less than six months' imprisonment) not
requiring counsel for indigent defendants, and established that any case that
involved potential incaraceration required the defendant be afforded counsel.

Seth Breidbart
06-05-2004, 03:35 PM
In article <fo7kb0l67bg2hqskdr77qrphtf8hkeal2f@4ax.com>,
Gerald Clough <firstinitiallastname@texas.net> wrote:

Child victims may be too young to make their own freestyle statement orold enough to express themselves and put events in proper context. Theyoung ones are interviewed by forensic child interview specialists whotake great care to avoid leading or suggesting.

That might be the case now; but if so, it's due to much publicity
given to cases where the exact opposite happened.

In some cases (though I can't recall references), the interviewer
refused to tape record the interview, claiming that it would be
somehow misleading. Since the interviews caused the children to make
claims that were clearly contrafactual (not to mention violating the
laws of physics), my belief is that the interviewers wanted to avoid
the possibility of a jury listening to them browbeating the child into
making the bogus claims.

Seth

Gerald Clough
06-07-2004, 11:59 AM
Seth Breidbart wrote:

In article <fo7kb0l67bg2hqskdr77qrphtf8hkeal2f@4ax.com>, Gerald Clough <firstinitiallastname@texas.net> wrote:
Child victims may be too young to make their own freestyle statement orold enough to express themselves and put events in proper context. Theyoung ones are interviewed by forensic child interview specialists whotake great care to avoid leading or suggesting. That might be the case now; but if so, it's due to much publicity given to cases where the exact opposite happened. In some cases (though I can't recall references), the interviewer refused to tape record the interview, claiming that it would be somehow misleading. Since the interviews caused the children to make claims that were clearly contrafactual (not to mention violating the laws of physics), my belief is that the interviewers wanted to avoid the possibility of a jury listening to them browbeating the child into making the bogus claims.

You're right about past abuses leading to the current standards. Thos
abuses were more often honest attempts to prosecute what they thought
were real offenses. Their reluctance to record the interview grew out of
fear that they would appear to be leading the child, which of course
they sometimes were, and out of fear that the way children relate events
wouldn't look credible.

A tremendous amount of work has gone into crafting multidisciplinary
approaches to crimes against children. Trained forensic interviewers now
conduct the interview without leading questions, and professionals can
explain the nature of children's recollections at various ages.

Every age presents its own difficulties. Very young children have
trouble placing events in time and recounting the number of events, but
they generally don't have any experience that would equip them to
concoct a story. Older children can relate things well in time, but they
do have the ability to concoct tales for a variety of reasons.

--
Gerald Clough
"Nothing has any value, unless you know you can give it up."

* Find more information on Medical Malpractice Laws.
Complete Labor Law Poster for $24.95
from www.LaborLawCenter.com, includes
State, Federal, & OSHA posting requirements