There is some overlap between crimes and torts, for example deliberately smacking a person in the head is the crime of battery and the tort of battery. If a person deliberately smacks another in the head, and causes harm to the other, they can be prosecuted and convicted for that crime. They can also be sued by the victim for the resulting damage.

If a person is prosecuted and convicted for the crime, can that fact subsequently be entered into evidence in a tort action against the person, as proof that the act happened and was caused by the defendant, making the only open legal question be what the damage was? Or, does the victim have to re-prove (to a different jury) that the act happened and that the defendant did it intentionally, as well as proving harm?

(My expectation is that the proof has to be replicated and the conviction cannot be introduced as evidence). Definitive case law, statutory or evidence-rule citations appreciated, as always. Any common law jurisdiction.

2 Answers 2


(My expectation is that the proof has to be replicated and the conviction cannot be introduced as evidence).

Your expectation is incorrect.

The name of the legal doctrine that allows a criminal judgment to have this effect in a civil case is called "collateral estoppel" which is also sometimes called "issue preclusion". See, e.g., A-1 Auto Repair & Detail, Inc. v. Bilunas-Hardy, 93 P.3d 598, 600 (Colo. App. 2004) ("Hardy contends Colorado law does not allow courts to apply collateral estoppel, now commonly known as the doctrine of issue preclusion, when the first adjudication is criminal and the subsequent litigation is civil. We disagree.")

Similarly, a case out of California stated:

To preclude a civil litigant from relitigating an issue previously found against him in a criminal prosecution is less severe than to preclude him from relitigating such an issue in successive civil trials, for there are rigorous safeguards against unjust conviction, including the requirements of proof beyond a reasonable doubt and of a unanimous verdict, the right to counsel, and a record paid for by the state on appeal. Stability of judgments and expeditious trials are served and no injustice done, when criminal defendants are estopped from relitigating issues determined in conformity with these safeguards.

Teitelbaum Furs, Inc. v. Dominion Ins. Co., 58 Cal.2d 601, 606, 25 Cal.Rptr. 559, 375 P.2d 439, 441 (1962) (citations omitted).

To the best of my knowledge, this is the rule in every U.S. jurisdiction (with the possible exceptions of Puerto Rico and Louisiana which are not common law jurisdictions). It is also the historical rule in British common law, although I don't know if this continues to be the case in non-U.S. jurisdictions.

Procedurally, the determination that collateral estoppel applies would usually be made on a motion for summary judgment, or in the preparation of jury instructions which state that liability has been established and that the jury is to limit itself to determining causation and damages, rather than as an evidentiary matter.

I've used this doctrine once or twice.

For example, I used it in a case where someone fraudulently sold ditch company shares worth several hundred thousand dollars (in Colorado, water is gold) that he didn't own (a transaction that could not be unwound because the buyer was a bona fide purchaser for value and the seller had apparent authority as a trustee of a trust owning the shares even though he didn't have the actual authority to sell them under the trust) and then spent the money he received before he was discovered (if I recall correctly, for gambling debts). He was convicted criminally and then my client, the victim, sued for money damages including statutory treble damages for civil theft and attorney's fees based upon collateral estoppel and an affidavit as to damages in a motion for summary judgment.

From a practical perspective the four main difficulties are that (1) people convicted of crimes often lack the income or assets to pay judgments, (2) there are double recovery issues involved in reconciling restitution awards in a criminal case (where the measure of damages is narrower) and damage awards in a civil case (where the measure of damages is broader), (3) there are priority issues involved in reconciling criminal awards for fines, restitution and costs, in each case with civil awards for damages, and (4) if the defendant declares bankruptcy, the non-dischargeability of the civil judgment must be affirmatively raised and proved (often this is elementary but there are strict time limits) in the bankruptcy proceeding.

Tactically, it is often better to sue first, collect what you can, and to bring a criminal complaint only when it turns out that the perpetrator is judgment-proof.


Absolutely (assuming you're talking about U.S. law). A criminal prosecution is a material fact in any other proceeding, whether it is civil or criminal. Given that the burden of proof to obtain the criminal conviction (guilt beyond a reasonable doubt)is (usually) much higher that that for a verdict in a civil proceeding (preponderance of the evidence, or more likely than not), proof of a criminal conviction for acts that are pertinent to the civil proceeding would be admissible.

The criminal conviction requires mens rea, proof of malice or intent on the part of the actor, so something that is found to be accidental would not be criminally actionable. Therefore, it follows that if the defendant was criminally convicted, the court had to be convinced it was either a deliberate or criminally negligent act.

  • 1
    Are you saying that the defendant could be estopped from arguing innocence in the civil trial, leaving just the amount of damages to be set? Is there a citable rule, or a case you can point to?
    – user6726
    Nov 5, 2016 at 22:05
  • No, not at all. The O.J. Simpson trial is a great example of someone who was exonerated at criminal trial and then lost the subsequent civil trial. A criminal conviction makes for a compelling argument in a later civil proceeding, but it does not eliminate or otherwise diminish the plaintiff's burden to prove their case. My point is, the lower burden of proof in a civil proceeding makes it almost impossible for a defendant to prevail at a civil proceeding where the guilty verdict is material fact, unless there's something extraordinary about that verdict to undermine its probative value. Nov 5, 2016 at 22:11
  • Well, I'm asking if a criminal conviction can actually be introduced in the corresponding civil process, so that all that needs to be determined is the size of the award. I know that the case could be re-argued.
    – user6726
    Nov 5, 2016 at 22:51
  • No, you can't circumvent the fact-finding and deliberative processes of a trial proceeding simply by introducing facts or evidence from another trial, no matter how prima facie those facts may be. Such evidence merely makes the plaintiff's case much easier to prevail in. Nov 5, 2016 at 23:52
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    Let's take battery as an overlapping example: if convicted of the crime of battery, what element could be missing that precludes liability for the tort of battery?
    – user6726
    Nov 7, 2016 at 16:23

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