Criminal vs. civil law: how wrongful death cases differ
Wrongful death is a type of tort that falls under personal injury (civil) law. While wrongful death cases can arise as a result of a criminal act, they differ from criminal cases in several important ways.
For starters, the purpose of a wrongful death action is not necessarily to punish the person or company at fault (the defendant), but rather to financially compensate the plaintiff for their loss. This compensation is referred to as “damages.”
In criminal cases, on the other hand, a person convicted of homicide or manslaughter might face jail time, probation, loss of their driving privileges and other penalties. Some criminal defendants must also pay a fine to the state, but this money is not given to the spouse or family of the person they killed.
In other words: Though criminal convictions can provide some measure of justice and accountability, they do nothing to financially support a grieving family. If you are seeking monetary compensation for the death of your loved one, you’ll have to file a wrongful death lawsuit in civil court.
Another important distinction is who can bring a case. In a criminal case, a government-appointed prosecutor files charges on behalf of the state and victims. The defendant is represented by either a government-appointed attorney or hires a private defense attorney to represent them. The survivors or estate of the deceased may be called upon as witnesses in a criminal case, but ultimately they have no say over the sentencing or plea bargain negotiations.
In a civil tort such as a wrongful death lawsuit, the deceased survivors or estate may choose to file a lawsuit in civil court. Usually, the plaintiff hires a wrongful death attorney to represent them, and the defendant hires a defense lawyer. Unlike criminal charges, civil claims can be “dropped” if, for instance, a pre-trial settlement is reached during negotiations or mediation.
Wrongful death lawsuits and criminal (homicide) charges also differ in how they proceed. Criminal cases usually go to trial, which is presided over by a judge and jury. Sometimes, plea bargain agreements and deferred adjudication can reduce the penalties a defendant must serve, but every person is entitled to a fair and impartial trial under the 6th Amendment to the U.S. Constitution.
Wrongful death actions, on the other hand, rarely proceed to trial. While some cases do go before a judge and jury in civil court, a vast majority of wrongful death claims are settled out of court during pretrial negotiations, mediation or arbitration.
Lastly, the burden of proof differs between criminal cases like homicide and civil cases like wrongful death. In a criminal case, the prosecutor must prove “beyond a reasonable doubt” that the defendant committed the crime. This is the highest legal standard.
In contrast, plaintiffs (or their attorneys) in a wrongful death claim need only establish that the defendant was more likely than not responsible for their loved one’s death (known as a “preponderance of the evidence”) — or at least 51 percent liable.
Proving fault is harder in criminal cases than civil claims, which means that a person whose criminal charges were dismissed could still be liable in civil court for personal injury or wrongful death damages — for example, take the OJ Simpson case. While a criminal conviction can help support a civil tort claim, it isn’t a requirement.