Criminal Law Distinguished From Civil Law

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 What Is The Difference Between Civil and Criminal Lawyers?

Civil lawyers should be distinguished from criminal lawyers. Both go to the same law schools and receive the same legal education. Both civil and criminal attorneys also sit for the same state bar examinations to acquire licenses to practice law. But civil attorneys and criminal defense lawyers usually pursue different types of practice that involve entirely different sets of laws in different court systems.

A criminal defense attorney deals with issues that arise when a person commits a “public wrong” or crime. Committing a crime has historically been viewed as an offense against the citizens of society as a whole or the peace of the community. Criminal activity is an offense against public order.

Public wrongs are arguably more serious than private ones, as they may involve consequences such as violence, malicious intent, and grievous bodily injury. But civil lawsuits can also deal with severe harm done by one party to another.

Private citizens usually need the services of a criminal defense attorney when charged with a crime by the state. Prosecuting a citizen under criminal law is solely a power of the government that a prosecuting authority can only exercise. Local prosecutors who work for the county or state governments may be called “district attorneys.”

For example, in California, a District Attorney (DA) is a constitutionally-elected county official responsible for prosecuting criminal violations of state laws and county ordinances. Similar arrangements are common in other states in the U.S.

Prosecutors who work for state governments and enforce state criminal laws are known as attorneys general. Attorney generals and deputies have other duties and are attorneys for state governments in civil matters. Whatever their title, these attorneys are government employees and are responsible for enforcing criminal laws and prosecuting people charged with crimes. They may also represent the state if a criminal defendant appeals their conviction.

People who violate federal criminal laws are prosecuted by attorneys who work for the federal Department of Justice (DOJ). The President of the U.S. appoints a “United States Attorney” to each of the 94 federal districts in the nation. Guam and the Northern Mariana Islands are also federal districts but share one United States Attorney. The U.S. Attorney is the chief federal prosecutor in their district. They are also responsible for civil litigation in which the federal government is a party. The head of the federal DOJ is the U.S. Attorney General.

Criminal defense attorneys defend people against criminal charges. They may be so-called “public defenders” who work for a public agency that provides criminal defense to people charged with crimes who cannot afford to hire a private criminal defense attorney. Sometimes the public defender is a private attorney who the government pays an hourly fee to represent indigent defendants. Or criminal defense attorneys may be private attorneys whose services are paid for directly by the person they defend.

Often, civil law cases involve substantial amounts of money. In contrast, criminal cases do not necessarily, but can on occasion, e.g., if large amounts of controlled substances have been distributed by a drug dealer who has been charged with crimes.

What Rights Do I Have Under Criminal Law That Are Absent From Civil Law?

Rights are not completely absent from the civil side of the law; however, certain rights that we all have under the U.S. Constitution play a more vital role in criminal prosecutions. They are usually not at play in the average civil case because the consequences for a defendant who loses a criminal law case are much higher than in a civil law case. Of course, most criminal defendants risk losing their liberty and going to jail or prison if they lose their case.

In civil law, the penalties for losing are usually monetary and perhaps an injunction or court order to desist from some behavior in the future. In criminal law, however, the penalty for conviction can include prison time or even imposition of the death penalty. So, criminal defendants have the following rights, which are guaranteed by the 4th, 5th, and 6th Amendments to the U.S. Constitution.

In addition, most state constitutions also guarantee these rights to criminal defendants:

Each of these rights must be respected in every criminal proceeding in every criminal court in the United States.

In addition, there are rights in the U.S. Constitution that regulate the procedures that police use to arrest people suspected of committing crimes, search places for evidence of crimes, and search people suspected of committing crimes. These rights are as follows:

  • The police must have a warrant to arrest a person for having committed a crime unless the arrest comes within an exception to the warrant requirement;
  • The police must have a warrant to search a place where they believe that evidence of a crime can be found unless the search would come within certain exceptions to the search warrant requirement;
  • The police must have a warrant to search a person they suspect of committing a crime, or the search must come within an exception to the warrant requirement.

All law enforcement agencies in the United States are obligated to respect these rules as they pursue criminals and work to collect evidence of criminal activity.

One significant right that a person has in a criminal case that does not apply in a civil case is the right to an attorney. In a criminal case, of course, a person has a right to an attorney, and if a person cannot afford one, the government has to provide an attorney to defend the person.

In a civil case, a person does not have a right to an attorney. If a person is sued because of an accident or a business deal that has gone sour, they would have to represent themselves or hire an attorney at their own expense. Often, a person has insurance that may provide them with legal representation in case they are sued.

For example, if a person is sued for negligence due to a car accident and their auto insurance policy includes a clause that places a duty to defend and indemnify on the insurance company, then the insurance company must provide the person with a lawyer to defend them. If the person is found liable to pay damages, the insurance company must indemnify them, meaning that the insurance company must pay the damages on their behalf.

This is why a person needs to know what kind of insurance coverage they have, e.g., homeowners insurance, auto insurance, professional liability insurance, and the like. A person wants to ensure that their policies include defending and indemnifying clauses. They are common in contracts for construction projects and place liability on a general contractor or subcontractor, depending on the clauses in the various contracts involved.

Are There Rules in Civil Law?

There are rules that govern procedures in civil cases as well. They are generally not based on the U.S. Constitution but come from civil law made by state legislatures and, in the case of civil cases in federal courts, by the U.S. Congress. There are two systems of civil courts in the U.S.: state and federal courts.

In common kinds of civil lawsuits, e.g., personal injury lawsuits or lawsuits for breach of contract, there are rules regarding how the parties can obtain evidence from each other and third parties to support their cases at trial. These are called the “rules of discovery.”

These rules differ from the rules of criminal procedure. For example, if someone is sued in a civil lawsuit, they can be compelled to appear and answer questions from attorneys about their knowledge of events and circumstances at issue in the case. The attorney for the person who is suing, the “plaintiff” in legal terminology, cannot compel the person to answer questions about their conduct if the conduct might be criminal. The person being questioned still has their 5th Amendment right to remain silent. But they can be compelled to answer questions about their conduct if it is not criminal. This is true even if their answer would make them liable to pay civil damages.

Again, the process in civil cases in which the parties locate evidence to use at trial is called “discovery,” and the rules of civil procedure govern it. As is true in criminal cases, every step of the process of prosecuting and defending a civil lawsuit is regulated by rules, and these rules aim to make the process fair and orderly.

While the processes and procedures in criminal cases may be somewhat different than those in civil cases, they are also regulated by rules, some of which originate in the U.S. Constitution and state constitutions. However, some rules of criminal procedure have also been created by state legislatures and the U.S. Congress. So the two systems, civil and criminal, are similar in certain respects and quite different in others.

When Do I Need a Civil Law Lawyer?

If you need an attorney to form a business, seek money to compensate you for property damage, recover for an injury you have sustained in an automobile accident, file for bankruptcy, buy an expensive piece of real estate, change the amount of child support you pay, or apply for an immigration visa, you generally are looking for a civil attorney who specializes in the relevant area of civil law.

When Do I Need a Criminal Lawyer?

You need a criminal defense lawyer when you have been charged with a crime by the district attorney in your area or by the U.S. attorney’s office in the district in which you live. Crimes charged can range from misdemeanors, such as shoplifting, to felonies, such as rape or carjacking, or the distribution of controlled substances. But whatever the charge, you should consult an experienced criminal defense lawyer.

If you have been the victim of a crime and think the perpetrator should be prosecuted, you should speak with the police and local district attorney’s office in the city or county where you live.

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