The 6 Key Differences Between Tort Law and Criminal Law Cases

Written by Christi Hayes and Fact Checked by The Law Dictionary Staff  

When someone inflicts damage to another person or to property, whether real or personal, the victim could be entitled to compensation. Providing a remedy for wrongs committed to the person or property of others is the purpose of tort law.

The simplest definition of a tort is a civil wrong committed by one person against another. Although each of them is a civil case, as opposed to criminal cases, breach of contract does not fall into the category of tort law. Tort law cases include the following:

Some events can give rise to both a criminal case and a civil case under tort law. Driving while intoxicated is a crime in every state, but a person driving while under the influence of alcohol or drugs could be violating a criminal statute while also being liable under tort law for causing an accident that injuries another person.

There are six key differences between cases filed under tort law and those brought under state or federal criminal laws:

  • The parties
  • The burden of proof
  • The outcome
  • Options for achieving a result
  • Ability to force defendant to testify
  • Effect of legislation

The party initiating the case is different in tort law and criminal law

Criminal cases are filed on behalf of the people of a particular state or, in cases alleging a violation of federal criminal laws, against the United States of America. The person against whom a criminal case is filed is known as a defendant.

Tort cases are commenced by a plaintiff, the victim of the wrongful conduct, against a defendant whose conduct is claimed to be responsible for the injuries to the plaintiff or to the plaintiff's property.

The burden of proof is more difficult to achieve in criminal cases

Prosecutors must prove the guilt of a defendant beyond a reasonable doubt to obtain a conviction in a criminal case. If expressed in terms of probability of certainty of guilt, beyond a reasonable doubt would be around 97 percent. This means that prosecutors must introduce evidence to establish around a 97 percent certainty of the fact that the defendant committed the crime for which he or she is charged in order to obtain a guilty verdict from a jury.

The plaintiff's burden of proof in a civil case is considerably easier than what prosecutors must go through in criminal cases. The civil burden of proof is more than 50 percent of certainty. In other words, the plaintiff's evidence must show that it is more likely than not that a defendant caused plaintiff to suffer injuries.

The outcomes are quite different in criminal law and tort law cases

A plaintiff in a civil case based upon tort law is usually seeking some form of monetary compensation for his or her injuries. Prosecutors, representing the interests of society in general, as opposed to the interests of only one individual, are seeking a conviction that will allow a judge to impose punishment in the form of a jail or prison sentence, fines or probation upon the defendant. In effect, tort law cases focus on making a victim whole while criminal law cases focus on punishing the offender.

Options differ for achieving the desired outcomes

Criminal cases are resolved through a trial, plea bargain or dismissal. Tort law cases can be resolved through settlement, trial, dismissal or arbitration. Settlement in a civil case is similar to the plea bargain in criminal cases in which the two opposing sides negotiate a resolution of the case that is mutually acceptable, but arbitration is not an option available in criminal cases.

Arbitration is a process by which the parties to a dispute agree to submit it to an independent arbitrator who reviews the evidence presented by the disputing parties and makes a binding decision. Depending upon the terms agreed upon by the parties, arbitration awards carry the same weight and finality as a judgment after trial before a judge or a jury.

Forcing a defendant to testify for the opposing side

The Fifth Amendment to the U.S. Constitution provides that no person can be compelled to testify in a criminal case if doing so would be against the interests of the witness. No such protection exists for the defendant in a case brought under tort law.

Either party in a case brought under tort law can be forced to testify at a trial. All it takes is a subpoena issued by the attorney for the party seeking to have the witness testify or by the court. The Constitution does not offer protection against being called as a witness in civil cases as it does in criminal cases.

Although a defendant in a tort case can be forced to testify, the Fifth Amendment might come into play if questions are asked that could subject the witness to criminal prosecution or be used against the witness in a pending criminal case. For example, a defendant in a tort case stemming from a car accident could invoke the protection of the Fifth Amendment if there is a pending driving while intoxicated criminal case, and the defendant is asked to testify about the consumption of alcohol prior to the accident.

Laws have more impact on criminal law cases than on those filed under tort law

Criminal prosecutions cannot be filed unless there is a statue or law enacted by the legislature criminalizing the conduct of which a defendant is accused. Tort law, in contrast, is primarily derived from common or judge-made law as opposed to legislation. There are, however, exceptions, such as wrongful death actions that are based upon statutes enacted in each state.

Whether facing criminal charges filed by the government or a lawsuit filed under tort law by a victim for compensation, it is beneficial to have the assistance of an attorney. Some attorneys handle both tort law and criminal law, but many attorneys and law firms focus their practices a specific area of the law, so you should inquire about an attorney's area of concentration when scheduling an appointment.

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