Last week, I wrote an article explaining some of the differences between a civil case and a criminal case. If the distinction seems cut and dry now, let me go ahead and throw a wrench in that. There are situations in which you might be involved in a civil case and a criminal case at the same time. Think back to the O.J. scenario from my other post. A single bad act can land you with consequences in both civil and criminal court.
These cases are tricky, because concurrent civil cases can negatively impact a criminal case. Here’s what you need to know.
The more you testify, the more likely your story will change
I often handle traffic defense cases, DUI criminal cases, animal bite criminal defense cases, and even victim representation in civil and criminal court. What my experience tells me is that the more people who are required to testify in court, the more their stories can change. Time elapses. Details get fuzzy. Witnesses talk with each other. Even cops suffer from this phenomena, and they usually have the benefit of writing real-time notes that they can refer back to when on the stand.
Testifying multiple times can lead to disaster in subsequent trials. Witnesses can be impeached with transcripts of their own testimony. Prior inconsistent statements can also be used against witnesses, to cast doubt on their testimony as a whole. This is a problem for any witness, not just those accused of a crime or those being sued. Even folks who don’t have a stake in the outcome can come away from testifying in a later trial bewildered about what happened and angry at basically being called a liar in court. Even the most innocuous changes can lead to conflicting testimony, and a good lawyer is always on the lookout for this type of situation (either to protect against it or take advantage of it, whichever the case may be).
Pleading the 5th may not help you in civil court, and could hurt you
There is a 5th Amendment privilege against self-incrimination in criminal court (meaning the District Attorney can’t force you to testify in their case or force you to incriminate yourself). What’s more, in criminal cases at least, the decision NOT to testify on your own behalf cannot be held against you by the fact finder. That means all jurors are instructed in criminal trials in Colorado that a defendant’s silence cannot be considered in any way. But there may not be a similar right to silence in an accompanying civil matter.
I’ve seen countless situations where a judge will advise someone that they’re under criminal investigation or facing prosecution in a criminal case, only to have that person take the stand and testify anyway. Now, in a criminal case that person is free to “Plead the 5th” and no adverse inference can be drawn against them. The judge will instruct the jury not to think badly of the defendant for invoking his or her constitutional rights, as we’ve already discussed.
In civil cases, however, there may not be such a jury instruction. Even in trials without a jury and in front of a judge only, a witness’ use of the 5th Amendment privilege can be held against them in some circumstances. So, the judge/jury is free to assume the worst, and in fact, most of the time they do! This can lead to a civil verdict against you, and that verdict can also be used against you in other cases. Now, imagine for the sake of argument that O.J.’s civil case happened before his criminal trial. Do you think the outcome would be the same? If he’d already lost a civil case, would he be more likely to also lose the criminal case? Perhaps… though we shall never know.
You need an attorney team, not just an attorney on your criminal case alone
Your defense attorney/team in either a civil or a criminal case needs to be accurately informed and able to advise you about the consequences in either realm. If you have separate attorneys or offices handling your criminal matter at the same time you are either defending against or initiating a separate civil lawsuit, then your attorneys need to talk to one another about the potential overlapping consequences of any particular course of action. A seasoned criminal defense attorney can help you in your criminal case, but an attorney should also be knowledgeable about civil consequences.
Count on Nicol Gersch Law to connect and coordinate all aspects of your criminal matter
As a long-time Colorado attorney, I’ve developed close relationships with area attorneys who handle civil matters. With considerable experience coordinating my client’s criminal and related civil matters, you can count on me to ensure consistency in approach and strategy. If you are facing a civil case in conjunction with a criminal case, do not wait to get legal help. An early start and tightly coordinated approach is essential. And if you aren’t sure about whether civil liability could arise from your criminal case, I can help you anticipate that also. Whether it’s impact on your family in a divorce or custody matter or a potential hit to your pocket book in a traffic accident, you need a good attorney team on your side.
Contact me for a free initial consultation by calling (970) 670-0738, emailing firstname.lastname@example.org, or visiting my firm’s website. Don’t wait! Protect your rights and reputation.