The Civil Injury Case vs. Criminal Case After an Assault

Two types of cases can arise after an assault: A criminal case brought by the D.A., and a civil injury case brought by the victim.

An assault can give rise to both criminal charges and a personal injury civil lawsuit. What it takes for a successful criminal prosecution of an assault is similar to what it takes to win an assault personal injury claim, but there are key differences.

Perhaps a little more complicated, but equally important, is understanding how a criminal prosecution will affect a personal injury claim based on the same underlying assault. In this article, the differences and interactions between criminal and  civil assault cases  will be discussed in detail.

Intent is the Big Difference

As discussed here, although an assault must be “intentional” to create liability in a personal injury claim, “intentional” only means one person (the defendant) meant to commit the act that made the other person (the plaintiff) apprehend they were about to be hit, attacked, etc.

Note the subtle distinction: the defendant doesn’t need to intend to put the plaintiff in apprehension, the defendant simply needs to intentionally commit an act that he or she  should have known  would cause the plaintiff to experience apprehension. The defendant’s motive simply does not matter when it comes to winning a civil assault injury case, although a particularly evil motive can lead to punitive damages.

The central question is whether the  plaintiff  had a reasonable reaction to what the defendant did, regardless of what the defendant thought he or she was doing.

In a criminal assault case, the prosecution must prove that the defendant acted with an intent to assault the victim. In other words, to be found guilty of criminal assault, a judge or jury must find beyond a reasonable doubt that the defendant  wanted  to assault the victim or recklessly ignored that he or she appeared to be assaulting the victim. The central question in the criminal assault case is whether the  defendant  had a criminal intent (called the “mens rea” in legal terminology).

The State Controls Criminal Cases, the Victim Controls Civil Cases

A criminal assault charge is prosecuted in criminal court. This means that a district attorney or other public attorney is in charge of the case against the defendant -- the victim will have little say in how the case is conducted, although he or she could be called as a witness.

Criminal assault is typically a misdemeanor, unless the charges are for aggravated assault, i.e. an attempt to cause serious injury or death and/or use of a deadly weapon. Depending on the state, a misdemeanor charge may not entitle the defendant to a trial by jury -- in that situation, the entire case will be decided by the judge.

The victim in the criminal assault case becomes the plaintiff in a civil assault case if he or she decides to sue the defendant for damages (a criminal case isn’t necessary before the plaintiff can sue in civil court). When this happens, the plaintiff is in control of his or her own case and the state or other public official is not involved. If the plaintiff wins, the defendant does not receive a jail sentence or any other type of punishment, but must pay whatever amount of financial compensation the jury or court orders. Unless the case is brought in small claims court, an assault case will involve a trial by jury.

Criminal and Civil Cases for the Same Assault

If the state decides to prosecute a defendant for criminal assault, the defendant cannot be sued in civil court for the same assault until the criminal case has concluded. If a civil case is already under way when a criminal case starts, the civil case is typically “stayed” (i.e. put on pause) until the criminal case has concluded.

The result in a criminal case, i.e. the defendant’s guilt or innocence and any other “findings of fact,” can be used as evidence in a civil case under a doctrine called “collateral estoppel.” Collateral estoppel is a complex rule that the judge in the civil case applies to determine whether the criminal findings can be used without having to prove everything a second time in the civil case.

It is difficult for even highly skilled attorneys to predict how a judge might apply collateral estoppel, but the general rule is that if the defendant had a full and fair opportunity to plead his case in the criminal trial, the results from the criminal trial will be applied in the civil court case.

More Information

To learn more about the criminal case following an assault, check out this article on Assault and Battery on To learn more about the victims' options in civil court, see our section on Intentional Injury Cases.

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