Personal Injury and Civil Court Standard of Proof

Balancing scales
Scales of Justice in a Civil Case

There is a burden of proof criminal or civil court required to obtain a conviction, judgment, or jury award. This burden is the relevant “standard of proof.” And it will be a different and lessened burden in civil court. So there is a more stringent standard in a criminal case.

Thus, the level of proof in criminal cases is always greater. There is a higher standard. After all, a guilty verdict can result in severe penalties. Penalties would include loss of life, liberty, and the pursuit of happiness for an upheld conviction. This criminal standard requires proof of guilt beyond a reasonable doubt. That means it must convince a judge or jury of the defendant’s guilt. Only then can they determine the sentence and penalty.

But the standard of proof in a civil case is usually the “preponderance of the evidence,” standard. But cases involving fraud or intent may require a clear and convincing evidence standard. Often, the original or amended complaint alleges fraud. So those causes of action would require a higher standard of proof for you to win.

What are the Wrongful Acts?

Wrongful acts or certain types of negligence can be the basis for criminal actions that result in financial punishment. Beyond fines and penalties, this same behavior can also result in imprisonment when the state or federal prosecutor initiates the criminal prosecution, and a jury ultimately decides upon conviction, or the defendant facing incarceration enters into a plea arrangement.

So although there may be criminal charges against a tortfeasor, the wrongful actions in a civil case that fall under civil tort law, even though they can also involve a private attorney general statute. This law means that an individual harmed through negligence, such as a fender-bender traffic accident can sue.

Same goes for intentional acts, such as when someone punches you in the face without a license. Or it could have been on purpose. And if so, you (as a tort victim) have the legal right to file a civil lawsuit. You would do so to recover damages. “Civil liability” under tort law defines these cases.


Criminal Case Compared to a Civil Case – Burdens of Proof

Evidence in all criminal cases should be clear and concise to be convincing in court cases, though with civil cases, the evidence often falls between this and “more likely than not.” This standard exists because civil court relies on a lower burden of the evidence. But to convict criminally, the evidence must be much greater and not just tip the scales.

In these types of jurisdictions, the plaintiff, the People of the State of California must prove crimes took place. This rule exists because in most criminal cases, jail time and even the death penalty can be a punishment if convicted. In any event, the U.S. Supreme Court says a lessened burden of evidence is required in most civil lawsuits.

And this is called the “preponderance of the evidence” standard of proof. This lowered evidentiary threshold exists mostly because the only punishment will be money damages. The one time that more is required is when “particularly important individual interests are at stake.” This standard is known as the “clear and convincing” burden of evidence.

Recent Court Example of Clear and Convincing Evidence Standard Issues

This higher civil standard has been mostly in cases that involve punitive damages, insurance bad faith, or fraud. But with every rule, there is always an exception. One example was in 2003. That was when the Arizona Court of Appeals upheld a lower standard of proof.

And that was because an insurance company claiming fraud by an insured party had sufficient cause to void the policy of the policyholder. So that relieved the insurance company from being obligated to pay without the need for clear and convincing evidence to prove the case by the carrier.

More recently in the state of California, an appeal case ruling involved a physician being sued by an insurance company under the statute for fraud due to over-billing. That Court ruled that the plaintiff could use a lower standard of the evidence to prove their case.

The physician’s counsel had argued the case should be prosecuted using the clear and convincing evidence (discussed below). But the doctor’s counsel also argued that the court could apply the more significant criminal burden since the stakes remained so high.

  • Other Issue – What if a Matter is Potentially a Crime And a Civil Case?

When a wrongful action takes place in which criminal charges can be brought against the one who caused harm to another person, tort law can also be used to sue. In such a case, you can bring a civil claim against the wrongdoer in civil court, irrespective of double jeopardy laws. This rule exists, because one example is a civil case and the other is potentially a chargeable offense in criminal court. So, in that case, there is no double criminal punishment for the same crime.

“I’ll Take the 5th?” – Criminal Case

 The Fifth Amendment restates the ancient Common Law right that:

“No person. . . shall be compelled in any criminal case to be a witness against himself.”

Our one Supreme Court has long upheld this natural right stating:

“The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which would furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime.” (Hoffman v. the United States, (1951) 341 U.S. 479, 486-487.)

With few exceptions, this rule is sacrosanct in a criminal case. Once relied upon, the defendant’s refusal to testify cannot be used against him or her to create an inference of guilt or innocence.

Pleading the 5th in a Civil Case Distinguished – Inference of Liability Potentially Inferred

Often when criminal charges are pending, or potentially chargeable, defendants in civil cases will use the 5th Amendment as a basis for refusing to answer questions in the pending civil lawsuit. In this case, a seasoned plaintiff’s lawyer will argue Evidence Code Section 412. This argument is made to attempt to have the other evidence that is produced by the defendant in mitigation viewed with distrust.

It is also potentially a sanction-able act in a civil case to take the 5th for purposes of refusing to answer questions while under oath in that civil case. Even fishing expeditions are allowed. Facts discovered now could lead to other new witnesses and facts. And that new info is potentially admissible in a civil action. Often that would typically become disallowed in a criminal case for various reasons.

Potential “Doomsday Sanctions” for Taking the 5th in a Civil Case? – YES

There are vast arrays of sanctions in a civil case available to a plaintiff to force compulsion of responses. The penalties can include the striking of the defendant’s answer and entry of judgment in favor of the plaintiff without even going to trial.

The potential sanctions for refusing to answer questions in civil discovery, based upon “absolute privilege” like this are many. These penalties include monetary sanctions and even more extreme “doomsday sanctions” like “issue sanctions,” “evidence sanctions,” “terminating sanctions.” (See also generally CCP §2023.030.)

The wrongful action case by the victim in civil court will be to recover financial damages. But the local DA or City Attorney handles criminal charges filed against the wrongdoer. Criminal court hears the charges. Criminal charges do not relieve you of civil liability. Also, both cases can use the same facts to garner evidence in the wrongful action.

Both courts using that same evidence can have different results. For example, an acquittal in the criminal court and a finding of liability in a civil court could have differing outcomes.  Such was the case in the O.J. Simpson matter.  He killed his wife and Ron Goldman. But O.J. played the race card and got out of jail-time. In any event, he still was held liable for money damages in the wrongful death lawsuit. So in that case, the surviving family members of decedent Goldman got a money judgment.

Differing Burdens of Proof

This seemingly strange result is due to the difference in the burden of proof. This burden is less in civil litigation than in criminal prosecution. The civil court found the sports figure liable in money for damages the deaths. So this shows the difference in proving a case in civil court compared to a criminal trial setting.

Conflicts are more likely to occur in criminal court settings, rather than civil actions with the same events. This disparity is why some cases that result in an acquittal are still thriving in civil court. Ad this is all due to the difference in the standard of proof. Many variables remain involved here.

The Unintended Consequences of Jurors Weighing the Evidence

Many political scientists believe the O.J. case became a racial trial of whites versus blacks. There was an almost all black jury panel. Most agree that the OJ criminal trial set back race relations in this country. In the end, evidentiary burdens, political and other factors can play a significant role in the way a jury rules on the standards of evidence.


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Michael Ehline is a highly trained personal injury attorney in Los Angeles, CA. He writes educational articles to help injured consumers.


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