Main Differences between Civil and Criminal Law

Most people are familiar with criminal law cases from watching popular television crime shows and media reports of famous criminal trials. But, there are actually two separate entities of law, civil law and criminal law, each with its own set of laws and punishments. The two differ in several key aspects.


Civil law deals with disputes filed by an individual, organization or corporation against another such party for failure to carry out a legal duty. The cases can be called “person versus person.” Examples of civil cases are child custody proceedings, divorce cases and property disputes. Civil law is divided into three main areas. Property law concerns the establishment and enforcement of the rights of possession and ownership. Contract law deals with the voluntary agreements between individuals. Tort law deals with a variety of other legal wrongs that involve harm to individuals such as malpractice or product liability.

By contrast, criminal law is the body of law that deals with crime and the legal punishment of criminal offenses. Crimes are categorized into two classes: felonies, which have a possible sentence of more than one year of incarceration and misdemeanors, which carry a possible sentence of one year or less of incarceration. Some types of crimes are theft, murder, assault and drug trafficking.

In civil cases, the complaining party is termed the plaintiff and the responding party is called the defendant. In criminal cases, the federal or state government files the case. These can be thought of as “ state versus person” cases. The government is referred to as the State and is represented by a prosecutor, against a defendant. The legal process through which both types of complaints are resolved is known as litigation.


The law seeks to pursue different purposes in civil and criminal cases. Civil cases are meant to redress wrong doings by fulfilling the legal duty or awarding compensation for injuries, or both. The plaintiff is made “whole” for wrongs against him. Punitive damages, which punish the defendant, can also be awarded, in addition to compensatory damages.

On the other hand, criminal cases are primarily meant to punish the wrongdoer. The penalty can be a fine and/or restitution to a victim or supervision in the community. Also, only criminal cases can result in prison time or capital punishment. An incentive is produced for the defendant and others to not commit the same or similar crimes. The remedy may also seek to reform the criminal, if possible.


Because legal theory considers the loss of freedom due to incarceration as more serious than paying damages, criminal litigation is more serious than civil litigation. As a result, criminal defendants have more rights and protections, some protected by the Constitution, than civil defendants. For example, there is the prohibition against unreasonable searches and seizures and the right to remain silent during questioning by police and prosecuting attorneys. Police usually must obtain a search warrant. Also, a defendant may refuse to be a witness.

In a civil case, the defendant must be available and cooperative for depositions and testimony as a witness in the trial. An attorney may demand that the opposing party provide information about any matter relevant to the case, as long as it is not privileged information.

Source of Law

Legal rules and laws arise from two main sources: legislatures and judges. Laws created by legislatures are called statutory laws. Criminal laws are all statutory. Judge-created law is known as common law. Rules of common law are found in case law, the body of decisions made in previous judicial decisions. Common law is guided by the principal of precedent. Common law develops over time in response to the cases that appear before courts.

Most of civil law has origins in common law. However, there is a system called civil code in which civil laws are passed by a legislature. Most states now have a civil law system that is a combination of common law and civil code.

Burdens of proof

There is a large difference in the burdens of proof between civil and criminal law cases. In criminal cases, the burden of proof is always on the State. The defendant is assumed innocent and the State must prove guilt. Some exceptions to this are when a defendant must prove conditions such as insanity or self-defense. The state must prove that the defendant met each element of the statutory definition of the crime and the defendant’s participation beyond a reasonable doubt. Estimates put this standard at 95-99% certainty of guilt.

With civil litigation, the burden of proof is initially on the plaintiff. In some cases, it may shift to the defendant to refute the plaintiff’s evidence. The plaintiff wins if the preponderance of evidence favors the plaintiff. Estimated at a 51% certainty, this standard is a much weaker one than in criminal litigation. For certain types of disputes, there standard must be by clear and convincing evidence. This standard is evidence that establishes truth by a high probability, though still lower than that of beyond a reasonable doubt.


The two burdens of proof have a loose connection to the number of jurors required to reach a verdict. Criminal trials almost always allow for a trial by jury. Criminal trials in the Federal system and nearly every state require a unanimous decision. In civil trials, the number of jurors needed to issue a verdict differs among jurisdictions. Many civil cases can be decided by a judge rather than a jury.

In criminal cases, a defendant is entitled to an attorney and one must be provided by the state if he is unable to afford one. A defendant in a civil trial must pay for his own attorney or defend himself.

In criminal cases, only the defendant can appeal a decision. However, both parties may appeal civil law cases. Defendants in civil cases are found either liable or not liable for damages. By contrast, criminal case defendants are found guilty or not guilty.

Most civil and criminal cases do not go to trial and are resolved by settlement and plea bargain, respectively. Yet, understanding the features of each type of case is helpful to know if involved in a dispute or if one is a victim of a crime. As completely separate areas of the law, there are significant differences between the law for civil and criminal cases.