The different burdens of proof in civil and criminal court (more likely than not vs. beyond a reasonable doubt) are the most obvious difference between civil and criminal court. These forums also serve different purposes. Civil courts compensate victims and criminal courts punish offenders.

Sometimes, matters overlap in criminal and civil court. The 1990s O.J. Simpson murder saga is a good example. Following a sensational trial, a criminal jury acquitted Simpson. Then, following a low-key trial, a civil jury concluded that he was liable (legally responsible under civil law) for the crime.

When worlds collide, a Marietta criminal defense lawyer often wears two hats. The job is much the same. In civil court, attorneys protect the legal and financial rights of individuals. In criminal court, the focus is almost exclusively on legal rights.

Hit-and-Run

LSA (Leaving the Scene of an Accident) is perhaps the best example of the different burdens of proof in criminal and civil court. It might also be the best example of the different purposes of these forums.

Criminal Court

Drivers could be charged with criminal LSA even if they weren’t at fault for the wreck. The state usually presses these charges if a defendant fails to:

• Provide his/her name, address, and registration number (many states don’t have this requirement),
• Display a current, valid drivers’ license,
• Render reasonable aid, including the making of transportation arrangements, to injured but conscious victims, and/or
• Call 9-1-1 if an injured victim is dead, unconscious, or otherwise unresponsive.

Furthermore, if the crash caused more than $50,000 in damage (usually if the other vehicle wasn’t drivable), the driver must report the crash to a local law enforcement agency.

In court, the state must prove that the defendant was behind the wheel at or near the time of the wreck. Because the burden of proof is so high, the state usually needs a voluntary confession or a credible eyewitness.

Confessions are subject to the Fifth Amendment’s right to remain silent. Officers cannot ask questions until they inform defendants of this right, and these defendants waive that right, usually because they answer the question anyway.

Credible eyewitnesses are very hard to come by in these cases. Most vehicles have at least partially tinted windows. At best, people looking from the outside see vague figures.

Sometimes, the state’s proof is a combination of these two. Someone who was in the car rolls on the defendant, or the defendant says something about the incident to a third party.

Civil Court

Prosecutors need overwhelming evidence in criminal court. But a Marietta personal injury lawyer only needs marginal proof in civil court.

In fact, in most cases, an attorney just needs a vehicle description and partial plate number, to locate the owner. It’s more likely than not that the owner was driving at the time. The vehicle description might come from the scene and the p[atrial plate number might be from a camera several blocks, or several miles, away. Once again, it’s more likely than not that the two vehicles are one and the same.

Assaut/Violent Crimes

These incidents spawn two legal proceedings, a compensation phase and a punishment phase, which take place in different courts.

Civil Court

Victim compensation in an assault or other personal injury case, as mentioned above, is a civil court matter. The responsible party could be:

• Assailant: Criminal and civil laws stress personal responsibility. In this situation, responsibility includes not only facing the music in criminal court, but also paying compensation in civil court. This compensation usually includes money for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering. Recall that battery is easier to prove in civil court than criminal court.
• Property Owner: Owners have a duty of care to keep invited guests reasonably safe. The duty to provide adequate security usually varies based on several factors, such as the type of business, the location of the business, the neighborhood’s crime rate, and prior similar incidents at that location or in the immediate vicinity.
• Assailant’s Employer: Similarly, employers have a duty to properly screen employees during the hiring process and properly supervise them afterwards. They cannot hire incompetent employees. People with bad tempers aren’t good customer service representatives. Furthermore, if misconduct allegations arise, employers must investigate them diligently and respond to them appropriately.

Most civil cases, like most criminal cases, settle out of court. Civil court settlement negotiations, however, are usually supervised.

Civil judges usually appoint professional mediators in contested cases. The mediator ensures that both sides negotiate in good faith. So, instead of going through the motions, they must try to settle the case and avoid trial. This attempt includes a responsibility to make reasonable offers and compromise if needed.

Criminal court negotiations are unsupervised and occur behind closed doors. As a result, many people criticize the plea bargain process, since it essentially gives prosecutors judicial powers. Usually, the state, which makes the first offer, decides the defendant’s punishment, and the judge signs approves the deal. But that’s the subject of a different blog.

Criminal Court

Financial responsibility is usually the biggest issue in civil court. Personal responsibility is usually the biggest issue in criminal court.

Police officers, who are basically professional witnesses, almost never witness assaults. So, the alleged victim, who has most likely never testified in court before, is usually the key witness.

Recall could be an issue. Frequently, both parties were drinking at the time. Additionally, the trial might be more than a year after the alleged assault. By that time, the alleged victim has most likely forgotten some key details.

The alleged victim’s motive could be an issue as well. That’s especially true in domestic battery matters. Alleged victims have been known to exaggerate, or even fabricate, battery charges to gain an advantage in a divorce or other civil proceeding.

Sometimes, the compensation phase and punishment phase overlap. If the defendant was charged with assault, the negligence per se rule could apply in civil court. Tortfeasors (wrongful actors) who violate safety laws and cause injury could be liable for damages as a matter of law. As for criminal court, restitution is a common condition of probation. Failure to pay restitution could be a violation of probation.

Injury victims and criminal defendants both need legal representation. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. After-hours and jail visits are available.

Civil-Criminal Matters in Georgia, Part II

Once upon a time, civil and criminal matters often overlapped. New York’s Domestic Relations Courts Act of 1933 allowed family law petitioners, such as divorce petitioners, to convert these matters to criminal cases. Several years later, Governor Thomas Dewey (the guy in the “Dewey Defeats Truman” headline picture) signed a bill directing police officers to track down and arrest runaway husbands.

The Great Depression in the 1930s and World War II in the 1940s dramatically changed American society. Polie officers had so much on their plate they no longer took the time to locate shiftless husbands, run down overdue library books, and perform other tasks that only benefitted a handful of people.

Nevertheless, the overlap still exists in some areas. We discussed some of these areas in a previous post. That post generated so many inquiries we decided to supplement it. In the matters discussed below, civil and criminal courts serve different purposes and are different in other ways as well. However, people in these situations often need a Marietta criminal defense lawyer as well as a Marietta personal injury lawyer.

DUI and Alcohol-Related Crashes

Drinking and driving is another example of a drastic 20^th century change in society, although it came much later than mid-century.

Criminal Law

Before 1990, DUI was basically a traffic ticket. Penalties were very light in Georgia and elsewhere. Additionally, when they stopped motorists for DUI, police officers often let them off with a warning.

A long-term DUI crackdown began with legal and policy changes in the 1990s. Georgia and other states amended their DUI laws, making this offense easier to prove and greatly enhancing the penalties. At the same time, most law enforcement agencies adopted mandatory DUI arrest policies, if an officer had probable cause to believe the driver was intoxicated.

Laws and policies have changed significantly in Georgia and elsewhere, but enforcement and prosecution methods haven’t changed much.

Police officer still use the same enforcement methods they used fifty years ago. New scientific evidence enables a Marietta criminal defense lawyer to successfully challenge these methods in court.

The horizontal gaze nystagmus test (HGN test or DUI eye test) is a good example. Intoxication causes nystagmus, a condition also known as lazy eye. However, it’s not the leading cause of nystagmus. Furthermore, many people have lazy eyes, but the symptoms are so mild they don’t know it. So, drunk or sober, these drivers cannot pass an HGN test.

Because of these reliability and accuracy issues, many Cobb County judges only allow prosecutors to use HGN results in limited situations.

Civil Law

Defendants are guilty of DUI if they completely lost their normal mental or physical faculties. A Marietta personal injury lawyer can obtain compensation for victims in these situations, and in others as well.

A criminal case usually triggers the negligence per se doctrine in civil court. Tortfeasors (negligent drivers) are liable for damages as a matter of law if:

• They violate safety laws, and
• Those violations substantially cause injuries.

Damages in a car crash or other personal injury case usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.

This compensation is also available in cases involving impairment, or partial loss of physical or mental faculties. Evidence of impairment, which begins with the first sip of alcohol, usually includes physical symptoms prior to the crash or at the scene of a crash, such as:

• Bloodshot eyes,
• Odor of alcohol,
• Unsteady balance, and
• Slurred speech.

In a slightly different context, this evidence could also prove third-party liability in alcohol-related crash cases. More on that below.

Other evidence of impairment includes erratic driving before the wreck and the tortfeasor’s statements about alcohol consumption.

Bars, restaurants, and other commercial providers could be vicariously liable for car crash and other negligence damages, such as intoxication assault damages, if they illegally sold alcohol to a person who later caused an injury. Illegal sales include sales to underage people and visibly intoxicated people, per the aforementioned physical symptoms. Other evidence, such as prior purchases at that location, is relevant as well.

Premises Liability and Criminal Negligence

We move from what may be the most common civil/criminal law overlap in Georgia to one of the least common ones. Nevertheless, falls, swimming pool drownings, dog bites, and other premises liability matters could involve civil and criminal consequences.

Civil Law

A duty of care is the foundation of a negligence per se or ordinary negligence case. This legal principle is based on the story of the Good Samaritan, the guy who went out of his way to help an injured traveler.

Likewise, property owners must go out of their way to provide safe and secure environments. The extent of the duty usually depends on the relationship between the victim and owner, as follows:

• Invitee: Most premises liability victims are invitees. They have direct or indirect permission to visit the building or house for commercial or social purposes. Property owners have a duty to ensure these guests are reasonably safe.
• Licensee: Some uninvited guests have a “license” to visit the property. A guest of an apartment tenant is a licensee. Since the relationship is not as close, the duty of care is not as high, and these people are legally entitled to less protection.
• Trespasser: Guests are trespassers if they don’t have permission to enter and they don’t benefit the owner. A door-to-door salesperson who ignores a “no solicitors” sign is usually a trespasser. Owners must refrain from intentionally harming trespassers, but other than that, the law doesn’t protect them, at least in most cases.

This classification system is quite complex, mostly because the categories overlap. Tim the tenant is an invitee at an apartment complex unless he does not pay his rent or follow another rule. Then, he becomes a trespasser.

Furthermore, a Marietta personal injury lawyer must prove, by a preponderance of the evidence, that the owner had actual or constructive knowledge of the wet spot on the floor, dangerous swimming pool condition, or other injury hazard.

Criminal Law

According to Section 16-2-1of the Georgia Code, “Criminal negligence is an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby.” So, in extreme cases, a fall or other such injury could also be an act of criminal negligence. That’s especially true if the victim died.

These matters are subject to the misfortune or accident defense in Section 16-2-2. In addition to a misfortune or accident, a Marietta criminal defense lawyer must prove “there was no criminal scheme or undertaking, intention, or criminal negligence.”

Injury victims and criminal defendants both need legal representation. For a free consultation with an experienced Marietta criminal defense lawyer, contact The Phillips Law Firm, LLC. After-hours and jail visits are available.