hypothetically speaking

Someone is in civil litigation and the defendant says that their actions are justified because the plaintiff committed a crime and the civil judge dismisses the civil litigation in favor of the defendant based on the defendants bare allegation that the plaintiff committed a crime.

The question; is civil and criminal litigation different? Is one adversarial (civil) and the other inquisitorial (criminal)? Or, do I have those backwards?

If the trial court in the civil litigation has authority to decide criminal allegation(s) in favor of one party over another, does the party accused of committing a crime have the same rights as he would in a criminal case, specifically the right to a verified criminal complaint showing the elements of the alleged crime?

  • Among the differences: there is no defendant in civil litigation. A judge in a civil trial is also unable to impose criminal punishment on any party to the trial, so the answer to the question in the last paragraph is no; a civil court has no such authority so the protections afforded to criminal defendants do not apply.
    – phoog
    Oct 16, 2019 at 3:15

4 Answers 4


The differences are:

  1. In civil litigation, the defendant is sued by the plaintiff (who may be a government, body corporate or natural person) for restitution (damages or a court order) of harm. In a criminal trial the defendant is prosecuted by the government for punishment of an offense.
  2. Civil plaintiffs have to prove their case on the balance of probabilities. Prosecutors have to prove the offense was committed beyond reasonable doubt for a crime (e.g. murder) or on the balance of probabilities for a civil offense (e.g. failing to get a dog license).
  3. The administrative procedures around them are usually different.

The similarities are:

  1. In common law jurisdictions a trial is adversarial - the role of the court is to determine the dispute; not to establish the “truth”. However, inquisitorial things happen before the trial, for example, discovery in a civil trial and a police investigation in a criminal one.
  2. The role of the judge and jury (if any) is the same.
  • Read up on Texas law here, w.r.t. traffic tickets: texasbar.com/AM/…
    – user6726
    Oct 12, 2019 at 1:44
  • In civil litigation, the person being sued is typically referred to as a respondent, not a defendant, at least in the jurisdictions with which I am familiar.
    – phoog
    Oct 16, 2019 at 3:17
  • @phoog they are called the defendant in Australia in the court of first instance, respondent in appeal or in tribunals
    – Dale M
    Oct 16, 2019 at 3:52
  • Thank you for clarifying.
    – phoog
    Oct 16, 2019 at 13:38

The answers so far mostly address this point, but the question makes numerous inaccurate assumptions, for example, regarding the circumstances under which a civil action will be dismissed.

There are really myriad differences between civil procedure and criminal procedure that are not easily summed up comprehensively. The other answers touch on some high points, but there are many, many more differences.

The rights of a plaintiff responding to accusations of a crime as a defense in a civil case, and the consequences if the court disagrees, are very different from those in a criminal case. The civil court process and the rights of a party in a civil action still apply. Thus, for example, in a civil case, the facts are determined based upon a preponderance of the evidence, there is not a right to counsel, and the party accused of a crime who refuses to testify under oath can have that refusal to testify held against him by a judge or jury deciding the case.

Misconduct of a plaintiff in a civil case, is simply either just an affirmative defense to the civil relief sought and at most will result in the dismissal of the plaintiffs claim and/or is a basis for relief in the form of money damages or an injunction against the plaintiff on a counterclaim brought by the defendant against the plaintiff, in addition to an affirmative defense by the defendant who accuses the plaintiff of a crime.

Also, not infrequently, allegation of criminal conduct by the plaintiff in a civil case do not suffice to establish either a defense to a civil action or a basis for a counterclaim.

For example, the fact that the victim of a car accident caused by the negligence of the defendant was an undocumented non-citizen, and a violent felon in possession of illegal drugs and a firearm, is not a defense to a lawsuit against the bad driver who caused the accident for money damages from physical injuries and property damages arising out of the car accident, unless it is possible to show that the crimes caused the victim to drive in a manner more negligent than the negligence of the bad driver. Those facts may go to the amount of economic damages that the accident caused (since felons, on average, have poor future employment prospects and you can't recover money damages for future illegal drug dealing profits, for example). But, it is not a defense to liability for the accident. Certainly, in this scenario, the criminal conduct of the victim of the car accident would not provide any basis for the bad driver to bring a counterclaim against the victim of the car accident.

Indeed, in most states, lawyers are expressly prohibited from using the threat of criminal charges to gain an advantage in a civil case, as a matter of professional ethics, and sometimes such threats can constitute criminal extortion (even if the threats are made by a non-lawyer).

On the other hand, in the unusual case in which the complaint filed by the plaintiff, on its face, unwittingly admits to facts that constitute a crime, the civil court could dismiss the case summarily at the request of the defendant if the criminal conduct which is admitted to in the plaintiff's complaint is a valid defense to the civil claim.

Because civil cases have less protection for the rights of the parties than criminal cases, because the parties do not have to face the full economic and legal resources of the state and because the worst case scenario does not involve incarceration, it is frequently possible to obtain relief for alleged criminal conduct in a civil case, even when a criminal conviction was not pursued by prosecutors or the criminal defendant was acquitted. The most famous example of this is the OJ Simpson murder case in which he was acquitted of murder in a criminal trial, but then found liable for wrongful death in a subsequent civil lawsuit and a huge amount of damages were awarded.


A civil suit wouldn’t be rejected just because of a plain assertion by the defendant. The defendant would have to give evidence for his claim, the plaintiff would be given opportunity to contradict that evidence, and the judge would have to decide if the alleged crime has anything to do with the civil case.


Criminal and civil litigation are both adversarial.

In neither scenario will the court dismiss a case because a defendant denies the allegations against him. In both scenarios, the defendant is entitled to a complaint that alleges some sort of offense. In the criminal context, that complaint usually must be verified; in the civil case, there is not usually a verification requirement, even if one party is alleging that the other engaged in criminal conduct.

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