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When Criminal Law and Civil Law Collide



Throughout human history, military planners have obsessed over one of the greatest military challenges their nation could face against an enemy: the two front war. That is, where their nation was attacked by enemies on two geographically separate fronts. For criminal defense attorneys and civil lawyers practicing today, it is important for them to keep in mind that their client may face criminal and civil legal battles on two fronts simultaneously. In other words, they and their client may have to fight their own two front war: one concerning civil law and the other concerning criminal law. These two front legal battles are becoming more and more common, as the criminal law and the civil law become more and more intertwined with one another.

Organizationally, the law can be roughly divided into two halves: criminal law and civil law. Criminal law concerns legal battles regarding an accused person’s innocence or guilt resulting in either the restoration of their liberty or being punished by imprisonment. Civil law concerns legal battles over the money and property of persons, corporations, and government. Open the statute books concerning criminal law and you will find subsections including financial crimes, violent crimes, property crimes, sex crimes, theft crimes, fraud crimes, drug crimes, domestic violence crimes, and crimes against public order, just to name a few. Look into the books concerning civil law and you will find subsections on divorce, bankruptcy, personal injury, creditor’s rights, environmental regulatory laws, shareholders rights; and wills and trusts, just to name a few.

Hence, a quick glance at the organization of the law books in any library would lead most people to believe the areas of civil law and criminal law are separate and distinct, and, therefore, never overlap under the same set of circumstances. This is not so. Many clients charged in criminal cases wind up involved in civil legal battles; and many times people involved in civil litigation wind up in the criminal courtroom. Why? Many times the same case, or set of facts and circumstances, triggers both criminal prosecution and civil litigation.

One example can be found in the area of financial fraud crimes. Suppose someone, we will call them Bill, is accused of stealing money from their employer. Bill may be charged in federal or state court with a variety of fraud or theft crimes such as mail fraud, wire fraud, embezzlement, or theft by conversion. At the same time, Bill’s employer may sue Bill in civil court for the money Bill’s employer claims Bill stole from the company, plus costs and penalties for intentionally damaging the company.

Looking at a shoplifting case, suppose a young college student, we will call her Suzy, is accused by store security of shoplifting clothing from a store at the local mall. Suzy is arrested, and she is charged with the crime of shoplifting. A few weeks after her arrest, Suzy receives a letter from the store’s attorneys demanding she pay $150.00 or some other sum of money to the store. This is a civil demand letter that essentially says we believe you shoplifted from our store and we demand compensation through civil law.

Sometimes the order of the legal battles is reversed, so a civil legal matter, such as a divorce, can lead to a criminal accusation against one of the persons involved in the divorce action. The two areas of the criminal law most linked to divorce and domestic proceedings are accusations of domestic violence crimes and accusations of sex crimes made by one party to the divorce against the other party to the divorce. As an example, suppose two persons are involved in a bitter divorce. One of them accuses the other of domestic violence battery – that is, the one spouse claims the other spouse hit them. This can trigger the accused spouse getting arrested for domestic violence battery, which can then place the arrested spouse in a weakened position during the divorce litigation. Looking at another scenario, suppose two persons are involved in a bitter custody battle over their children. This issue is controlled by civil law. However, one of the spouses may claim the other spouse is sexually abusing the children. This may result in the accused spouse being arrested and charged with a sex crime, which, in turn, imperils their chances of winning legal custody over their children.

Another area where the criminal and civil law merge is with respect to professional licensing issues, an area of administrative civil law. This scenario occurs quite often when a person holding a professional license or credentials: such as teachers, nurses, doctors, lawyers, stockbrokers or financial advisors, is accused of a crime. For example, suppose a stockbroker is accused of stealing money from the financial firm for whom she works, and she is prosecuted for committing the federal crime of wire fraud. She may also face a civil legal battle over whether she can keep her brokers license, which can be suspended or revoked under civil law.

One issue for criminal defense attorneys that often comes up is making sure their client’s right to not incriminate themselves is not threatened or breached by civil litigation. As an example, suppose Bob is involved in a car wreck with another car and the driver of the other car dies as a result of the wreck. The police come to the scene of the accident, investigate, and arrest Bob for DUI and vehicular homicide. During the police investigation, Bob does not admit to drinking alcohol, nor does he make any other admissions against his own legal self-interest. Under criminal law, his right to remain silent is protected by the Fifth Amendment of the United States Constitution. But, personal injury civil lawyers, representing the deceased person’s family, may want to get Bob to talk under oath by way of a deposition. Here Bob’s criminal defense lawyer will have to fight to keep Bob out of the deposition, so that Bob’s right to remain silent is not threatened by the civil lawsuit.

The key for all lawyers, whether they practice criminal law or civil law, is to be aware of the myriad of situations where an initial civil dispute may give rise to a legal battle in the criminal courts; or, visa versa, where a criminal action may trigger civil litigation as well. Great care must be taken by all lawyers to make sure their clients are protected on both fronts, as two front legal wars, involving civil litigation on the one side, and criminal litigation on the other side, are becoming more and more common in American society.

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