Wednesday, August 11, 2004

Criminal Prosecutions & Lawsuits


In most criminal prosecutions, civil lawsuits aren't a significant concern for the prosecution. As criminal prosecutions almost always involve intentional acts, and as insurance policies rarely cover either intentional or criminal acts, there is little incentive to sue. Most criminal defendants lack the personal resources to compensate their victims, and absent insurance there is no realisic means by which the victim can recover damages through a civil suit.

Where civil suits may be filed, prosecutors typically pressure the complainant to delay filing the suit until after the criminal case has been resolved, either through trial or plea. The idea is that, if a complainant testifies that she has filed a civil suit against the defendant, the defendant will be able to impeach the complainant's credibility by asserting that she is pressing false charges in order to reap a financial windfall. Mind you, defendants will put this thought into the jury's head anyway, with the difference being that if a suit has not (yet) been filed, the complainant can respond, "I have no intention of filing suit", or "I don't know if I will file suit."

Despite her denials on the witness stand, after the criminal verdict was returned, I doubt a single juror was suprised when the complainant in the Mike Tyson rape case reconsidered her testimony about her intentions to file suit. I also don't think a modern jury is likely to be offended by the fact that a civil suit is pending, or that the prosecution will be much harmed if the complainaing responds, "Of course I have filed a suit. Why shouldn't I seek compensation for what he did to me?" Greed? "No amount of money can undo what he did." Does it really bolster the credibility of the complainant for the suit to be delayed - are juries so much more credulous than the population at large that they believe the denials? Personally, I don't think juries are that stupid.

An acquittal in a high profile "he said - she said" case can have a devastating impact on a civil trial. Even though the burden of proof is lower in a civil trial, the publicity surrounding a high profile acquittal can make it difficult or impossible to relitigate the issues in a civil case. By way of example, no civil suit was filed following the acquittal of William Kennedy Smith.

So now we have the "Kobe Bryant case", with a trial court that leaks confidential information like an sieve, and with the complanant now filing her civil suit in advance of the criminal trial.
Legal experts said the suit would severely complicate the prosecution's efforts, if only by giving Mr. Bryant's lawyers another means to challenge the woman's credibility. They can now strongly suggest to the jury, for example, that she has financial reasons to lie, since a criminal conviction would help her win in civil court.
But isn't this a dilemma of the prosectution's own making? Not the prosecution in this case, alone, but of prosecutors across the nation who have encouraged complainants to delay their civil suits and lie about their intentions? With a bit more prosecutorial candor, this issue would be old hat.

What is interesting is that the filing of the civil suit seems to be an intentional gambit by the complainant's lawyers, to bring the criminal prosecution to a premature close. That is, it sends the impression that she had hoped to end up like the complainant in the Tyson case, getting a large settlement following conviction, but now fears ending up like the complainant in the William Kennedy Smith case, humiliated with no civil recovery. But even if she is playing a game to get the prosecutor to drop the criminal case, it remains the collective fault of prosecutors that the game is viable.

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