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UNDERSTANDING THE DIFFERENCES BETWEEN A CRIMINAL AND A CIVIL PROCEEDING

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In the American judicial system, there are essentially two different procedures: criminal prosecutions and civil lawsuits. Though the same court may hear both civil and criminal matters, they are very distinct, with different rules and features. Here's a brief overlook at some of the key differences between a criminal matter and a civil matter.

THE PARTIES

In a civil proceeding, the person bringing the legal action is referred to as the plaintiff, and is most often a private individual or entity, though the government can file a civil lawsuit. In a criminal matter, however, the legal action is always brought by a governmental entity (the state or the federal government, customarily) on behalf of its citizens. The governmental entity is never referred to as the plaintiff, but typically as the prosecution. In both criminal and civil matters, the party against who the action is brought is referred to as the "defendant."

THE SOURCE OF THE LAW

In all criminal actions, the defendant is charged with violating a written law, also known as a "statute." To the contrary, most civil law is what is known as "common law," or judge-made law, derived from opinions of judges in similar cases in the past. In most instances, courts follow the concept of "stare decisis," giving weight and authority to prior decisions. There are, however, some civil matters that may be established by statute.

THE BURDEN OF PROOF

The "burden of proof" refers to the degree to which the evidence must support one side or the other in the case. In both criminal and civil matters, the party bringing the legal action (the plaintiff or the prosecution) has the burden of proof.

In a criminal case, the prosecutor must establish guilt "beyond reasonable doubt." Note that the prosecutor doesn't have to eliminate all doubt, only reasonable doubt-the jury ultimately decides whether the doubt established is reasonable. In a civil matter, however, the burden of proof is typically much lower, usually what is known as "a mere preponderance of the evidence," or, essentially, more likely than not. So, in a civil matter, the jury must only establish whose version of the facts has greater weight.

THE PENALTIES OR SANCTIONS

In a criminal prosecution, there are a number of potential sanctions-fines, incarceration, restitution, community service and even, in some jurisdictions, the death penalty. In a civil matter, however, there are only two types of penalties-monetary damages and specific performance. An award of monetary damages requires one party pay a specific amount to the other party. An award of specific performance requires that the defendant engage in (or refrain from engaging in) a certain act. Specific performance is typically only available in very limited circumstances, such as the sale of land or the performance of unique services.

CONTACT THE LAW OFFICES OF MALLON & TRANGER

To learn how we can help you if you have been injured, contact us online or call us at 732-702-0333 (toll free at ). There is no charge for your first meeting. We have offices in Freehold, Toms River and Point Pleasant.

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