When torts and crimes overlap

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Crime and Civil Justice

December 2011, Volume 47, No. 12

When torts and crimes overlap 

Jeffrey R. Dion

When a civil suit involves a criminal act, the perpetrator’s prosecution can be an invaluable source of information. Building a good relationship with the prosecutor is the key to tapping into that resource and obtaining justice for the victim.

 

SIDEBAR

Representing victims of violent crime
by Elizabeth Joyce

The incident that led to your client’s civil lawsuit may entail a criminal case as well. When you sue a shopping center that owns the parking lot where your client was the victim of a serial rapist, represent a young father who was catastrophically injured by a drunk driver, or seek justice for a young child molested at her day care center, prosecutors are concurrently pursuing a criminal conviction.

You can obtain valuable information from the criminal case if you work with the prosecutor, but you must tread carefully. For many prosecutors, the first thought when a civil attorney appears is that “he or she is just going to mess up my case.” Before you can develop a positive relationship with the prosecutor, you must communicate two key points. First, he or she should know that you do not seek to jeopardize the criminal prosecution. Second, you should tell the prosecutor about how you can provide assistance to the criminal case. Assure the prosecutor that while you may have different methods of seeking justice and accountability, you are not at cross purposes.

You can demonstrate your support for the prosecution in several ways. One significant benefit you can offer is facilitating communication with the victim. Both the civil and criminal justice systems can be complex and confusing to laypeople, particularly those victims or family members who are experiencing trauma from the criminal investigation and trial as well as the crime itself. Trial lawyers often have more contact with the victim than a prosecutor with a large caseload. They may help the victim understand a particular ruling and why a plea bargain may be in his or her best interests.

Nearly every prosecutor’s office has a victim advocate or a victim-witness assistant. Get to know the advocate assigned to your client’s case to maintain an open, collaborative relationship. If you are a member of the National Crime Victim Bar Association or work with victims’ rights groups such as Mothers Against Drunk Driving or Parents of Murdered Children, let the prosecutor’s office know that. It demonstrates your commitment to victims and indicates that you are not involved in just one case.

Prosecutors nearly always prefer a civil claim to be delayed until a criminal case is resolved. They fear a victim’s interest in a civil case may be used to impeach the victim’s credibility in the criminal case testimony. This concern is greatest in cases where the victim’s credibility is paramount, such as prosecutions for domestic violence or sexual assault. Plaintiff attorneys should defer filing the civil action whenever practicable. Several states offer victims a longer civil statute of limitations to avoid any conflict with the criminal case.1

Civil attorneys often have greater investigation resources than cash-strapped prosecutors’ offices. In situations where civil discovery or preliminary investigation has produced evidence that is relevant to the criminal case, you can share it with the prosecutor. In one Florida murder case, the plaintiff attorney’s investigators identified key witnesses who had not spoken with the police. The attorney shared the witness statements and contact information with the prosecutor, who used it to secure a conviction.

In a Pennsylvania case, a civil attorney learned that an attack on the victim was retaliation for alleged previous bad acts and alerted the prosecutor, who was then prepared to address the allegations at trial. When prosecutors are willing to share taped statements of witnesses they have interviewed, plaintiff attorneys should pay for those recordings to be transcribed.

Trial lawyers also can help prosecutors understand the importance of protecting the victim’s civil remedies. Prosecutors and victim advocates are increasingly becoming aware of the criminal justice system’s limitations and recognize that even when a criminal is prosecuted, convicted, and incarcerated, victims may be left with unaddressed and serious needs. Civil litigation can provide the vital resources victims need to rebuild their lives. A civil suit can also seek accountability from those whose negligent acts created an atmosphere that made the crime possible. It might also create economic incentives for those parties to enact safety and security measures.

Every civil attorney’s dream is to have the prosecutor open his or her files and freely share information that may impact the victim’s civil claim. Those relationships do exist. One attorney had such a collaborative relationship with an assistant prosecutor that before the prosecutor concluded with a key witness at trial, he would quietly ask the attorney if there was anything else he should get on the record to help the civil case.

Defendants as resources

Even without such collaboration, the criminal prosecution is a rich source of information that can support the victim’s civil suit. You might have the opportunity to interview the criminal defendant about information central to your tort case. For example, a defendant can disclose where he or she was drinking before a drunk-driving collision, enabling you to identify a potential defendant in a dram shop action. A defendant could reveal who negligently entrusted him or her with a firearm before the crime, or explain that he or she targeted victims in a particular parking lot because there were fewer security measures than at other shopping centers, thus establishing inadequate security as a proximate cause of the victim’s injuries.

The right time to seek a sworn statement from the criminal defendant is after guilt has been established through a conviction or guilty plea but before sentencing, because that is when a criminal defense attorney will be most cooperative. As plaintiff attorney Elliot Glicksman of Tucson, Arizona, explains, the defense attorney wants to be able to argue at sentencing that the defendant feels remorse. When seeking a defendant’s statement, Glicksman tells the defense attorney that if the defendant gives a statement before sentencing, the defense can tell the judge that the defendant has cooperated with the victim’s investigation. If the defense attorney won’t allow the sworn statement, Glicksman will tell the judge that the defendant has refused to cooperate.

Some prosecutors will agree to include a provision in a plea agreement that requires the perpetrator to give a truthful statement to the victim’s attorney before sentencing. Prosecutors may stipulate that if the court does not accept the plea agreement, the statement will not be used in the criminal case.

The perpetrator must understand that the plaintiff lawyer does not work for the prosecutor, so that any statement is made freely and without expecting leniency in exchange for the statement. The defense attorney must understand that the victim may still ask the judge to impose the maximum sentence.

The victim’s lawyer should always attend the sentencing hearing. Mitigating testimony offered at the hearing may reveal evidence of diminished cognitive abilities or other mental deficiencies. While the criminal defense is offering this evidence to explain why the perpetrator should not be judged too harshly, the plaintiff attorney can use the same evidence to argue that an intentional-act exclusion in a liability insurance policy should not prevent coverage for the incident. Sentencing hearings might also bring prior incidents to light that the civil attorney can use to establish critical notice requirements in a subsequent negligence suit against a third party.

A criminal conviction also may help your case on a practical level, because a majority of states and the federal courts provide an exception to the hearsay rule that permits evidence of a criminal conviction or a guilty plea2, which carries a potential sentence of at least one year in prison, as substantive evidence in a subsequent civil case.3 Simply put, in civil actions, criminal convictions may be admissible as evidence of the facts on which the conviction was based and have a collateral estoppel effect on facts found or admitted in the case.

Increasingly aware of the burden on victims to relitigate duplicative facts in civil cases, several states have enacted legislation paving the way to a more efficient means to civil recovery. For example, in Alabama, if a defendant is convicted of a crime, it is conclusively determined that the defendant is liable for any pecuniary damages the victim suffered in a subsequent civil action.4 Virginia permits evidence of a plea of guilt or nolo contendere no matter the potential sentence.5 Ohio “preclude[s] the offender from denying in the subsequent civil proceeding any fact essential to sustaining that judgment, unless the offender can demonstrate that extraordinary circumstances prevented the offender from having a full and fair opportunity to litigate the issue in the criminal proceeding. . . .”6 In Pennsylvania, a guilty plea or conviction may be deemed negligence per se.

Victims’ rights

While civil attorneys can be most effective when they develop a collaborative relationship with the prosecutor’s office, legal strategies can provide a fallback when information and cooperation are not forthcoming. All states and the federal government have statutes that provide crime victims some basic rights, and 37 states have amended their constitutions to incorporate these rights.

While there is some variation among jurisdictions, a victim’s rights include the right to notice of all judicial proceedings, be present at those proceedings, confer with the prosecutor about potential plea agreements, offer victim-impact testimony at sentencing, and restitution or compensation. The federal Crime Victims’ Rights Act (CVRA)7 and some state acts8 confer standing for victims or their authorized legal representatives to assert these rights. Other states have found standing to be inherent in the statutes and have recognized victims’ representation by legal counsel in the criminal case for asserting those rights.9

To maximize the benefits these rights offer in a civil claim, trial attorneys should officially represent the victim in the criminal case, which will offer numerous advantages. As counsel of record, you will be notified of the sentencing hearing, including any last-minute schedule changes, and will be able to confer with the prosecutor. You may request a provision in any plea agreement that the perpetrator will offer a statement to you. Further, representing the victim in the criminal case gives you a legitimate reason to be present and involved that does not carry the same prejudice as an impending civil lawsuit. In fact, representing the victim in the criminal case can be part of your investigation into whether to pursue a civil action at all.

The Eleventh Circuit has found that the rights the CVRA affords are not limited to victims whose identity constitutes an element of the offense or who are identified in the charging document. In the case In re Janis W. Stewart & Other Borrower-Crime Victims, a bank executive and mortgage lending executive were prosecuted for a criminal conspiracy to pocket brokers’ fees paid at closing.10 The government charged the defendants with depriving the bank of honest services in violation of the wire fraud statute.

After the government entered into a plea agreement with the defendants and presented it to a magistrate judge, borrowers who paid the fees moved for leave to appear and be heard. Both the magistrate judge and the district court refused to recognize the borrowers as crime victims. The borrowers petitioned the Eleventh Circuit for a writ of mandamus, asking to be recognized as victims under the act. Over the defendants’ and the government’s objections, the court held that “because the criminal activity directly and proximately harmed petitioners, they are victims and enjoy the rights the CVRA creates.”11

The Fifth Circuit considered the issue during civil litigation stemming from an explosion at a BP oil refinery in Texas that killed 15 people and injured more than 170. Before bringing any charges and without prior consultation with the victims as required by the CVRA, the government filed an ex parte motion to enter into a plea agreement with BP. The criminal information was filed under seal, and two days later, the government and BP signed the agreement. The next day, the information was unsealed and the plea agreement was announced.

Victims asked the district court to reject the plea agreement on the grounds that their rights had been violated under the CVRA. The government argued that the large number of victims made it impracticable and that “notifying the victims would result in media coverage that ‘could impair the plea negotiation process and may prejudice the case in the event that no plea is reached.’ ”12 When the district court denied the victims’ request, they filed a mandamus petition with the Fifth Circuit. The appellate court found that by accepting the plea, the district court had violated the CVRA:

It is true that communication between the victims and the government could, in the district court’s words, “impair the plea negotiation process,” if, by using the word “impair,” the court meant that the views of the victims might possibly influence or affect the result of that process. It is also true . . . that resourceful input from victims and their attorneys could facilitate the reaching of an agreement. The point is that is does not matter. The act gives the right to confer. . . . [T]he victims should have been notified of the ongoing plea discussions and should have been allowed to communicate meaningfully with the government, personally or through counsel, before a deal was struck.13

Perhaps the most high-profile benefit to civil litigation from a criminal case came during the prosecution of Zacarias Moussaoui—the so-called 20th hijacker—for conspiracy to commit the 9/11 terrorist attacks. A group of victims whose family members had been killed brought suit against the airlines for the negligent security screening that failed to identify the hijackers and prevent the hijacking. The Department of Justice (DOJ) blocked the families’ access to sensitive security information on the grounds that releasing it would compromise the safety and security of additional airline passengers. When the DOJ released those same documents to Moussaoui’s lawyers in an effort to disclose any exculpatory information and prevent an issue for appeal, the families filed a motion to intervene. U.S. District Court Judge Leonie Brinkema granted the motion to intervene, saying she has “always been troubled” about the extent to which “our government keeps things secret from the American people.”14 Her order allowed attorneys for the victims’ families to obtain copies of documents related to aviation security before the 9/11 attacks. The disclosure became a turning point in the civil litigation and paved the way for the successful settlement of the plaintiffs’ claims.

Whether your client was injured in a simple assault or an international terrorist plot, the criminal prosecution can provide valuable information to support the victim’s civil claims. The best way to get that information is to develop a cooperative relationship with the prosecutor. If those efforts are insufficient, look to the crime victims’ rights laws in your jurisdiction for legal authority for your client to obtain information about the criminal prosecution.

Jeffrey R. Dion is the director of the National Crime Victim Bar Association in Washington, D.C. He can be reached at jdion@ncvc.org.

Notes

  1. These states include Arizona (Ariz. Rev. Stat. §12-511 (2011)), Georgia (Ga. Code. Ann. §9-3-99 (2011)), Hawaii (Haw. Rev. Stat. §657-23 (2011)), Idaho (Idaho Code Ann. 5-248 (2011)), Illinois (735 Ill. Comp. Stat. 5/13-202 (2011)), Maine (Me. Rev. Stat. Ann. Tit 14 &752-E (2011)), New York (NY CPLR §215 (2011)), North Carolina (N.C. Gen. Stat. 1-15.1 (2011)), Virginia (Va. Code. Ann. §8.01-229 (2011)).
  2. A guilty plea is distinguishable from a plea of nolo contendere because “unlike a plea of guilty or a conviction following a plea of not guilty, a plea of nolo contendere may not be put into evidence in a subsequent civil action as proof of the fact that the defendant committed the offense. . . .” Wayne R. LaFave et al., Criminal Procedure §21.4, at 1006 (4th ed. 2004).
  3. See e.g. Fed. R. Evid. 803(22).
  4. Ala. Code §15-18-75 (2011).
  5. Va. Code Ann. §8.01-418 (2011).
  6. Ohio Rev. Code §2307.60(A)(2) (2011).
  7. 18 U.S.C. §3771 (2006).
  8. Ill. Const. art. 1, §8.1; Nev. Const. art. 1, §8; Or. Const. art. I, §42; Ariz. Rev. Stat. 13-4437 (2011); Fla. Stat. Rev. 960.001 (2010); Ind. Code §35-40-2-1 (2010); Cal. Const. Art. 1, §28; Mo. Rev. Stat. §595.209 (2011); Md. Rule 1-326.
  9. See e.g. State ex rel. K.P., 709 A.2d 315, 320 (N.J. Ch. 1997).
  10. 552 F.3d 1285 (11th Cir. 2008).
  11. Id. at 1289.
  12. In re Dean, 527 F.3d 391, 392 (5th Cir. 2008).
  13. Id. at 395 (citations omitted). Although the court found a clear statutory violation, it declined to grant mandamus on the grounds that victims were allowed meaningful participation before the district court. It admonished the district court to carefully consider the victims’ objections and briefs as the matter proceeded.
  14. 9/11 Judge Blasts Government Secrecy, CNN (Apr. 8, 2006), http://tinyurl.com/62qzx6l.


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