When A Civil Matter Follows A Criminal Case

Chicagoans are all too familiar with the videotape of an off-duty police officer beating a petite bartender. The officer, Anthony Abbate, pleaded not guilty to 15 counts, including felony aggravated battery charges.

In the meantime, the bartender has filed a federal civil rights action against the officer and the police department, asking for more than $1 million.

Both cases are moving forward, but not simultaneously. Generally, the criminal case moves more quickly under the Illinois Speedy Trial Statute, 75 ILCS 5/103-5(a), which establishes time limits for completing various stages of a criminal prosecution. Federal courts have a similar Speedy Trial Act, 18 U.S.C.A. Sec. 3161.

When identical issues are being litigated in civil and criminal proceedings, courts typically stay the civil matter until the criminal case is decided. The question then becomes: Can a conviction in the criminal matter be used as evidence in the subsequent civil case?

Under the doctrine of collateral estoppel, the issue of liability is not relitigated when the defendant is found guilty. American Family Mutual Insurance Company v. Savickas, 193 Ill.2d 378, 739 N.E.2d 445 (2000).

The doctrine of collateral estoppel or issue preclusion provides that parties to a lawsuit or those in privity with them are bound by any decision of fact or law that was fully and fairly litigated on a previous occasion and necessary to that court’s judgment.

Generally, for the doctrine of collateral estoppel to apply, several conditions must be met: (1) the issue decided in the criminal case must be identical with the one in the civil matter; (2) the issue must be decided on the merits in the criminal matter and must be final judgment; (3) the party against whom estoppel is asserted must have been a party or in privity with a part in the criminal case; and (4) the party sought to be bound must have actually litigated the issue in the criminal case and a decision on the issue must have been necessary to the judgment. People v. Nance, 189 Ill.2d 142, 147, 724 N.E.2d 889 (2000).

Courts will examine the circumstances under which the estopped party made exculpatory statements and whether the stakes were similarly high in the initial proceeding so as to give an incentive to the parties to fully and fairly litigate all relevant issues.

In Tularico, the court found, "In the context of prior criminal proceedings, the seriousness of the allegations or the criminal charge at the prior hearing is a factor to be considered. If the offense charged is of a minor or trivial nature, defendant might not be sufficiently motivated to challenge the allegations made at trial and, in such a case, it might be unfair to allow collateral estoppel to be asserted later." Id., at 193.

In Illinois, since 1964, proof of convictions have been allowed into evidence at subsequent civil trials to prove the facts upon which the conviction was based. Smith v. Andrews, 54 ill.App.2d 51, 203 N.E.2d 160 (2d Dist. 1964).

Defendants in several jurisdictions have challenged this finding, based upon hearsay as well as the Seventh Amendment right to trial in civil matters involving more than $20. Courts now generally allow criminal convictions to be admitted as an exception to the rule against hearsay in that they are reliable and trustworthy, keeping in mind that defendants have a strong incentive to defend against criminal charges.

The issue becomes more complex when a guilty plea is involved. In that case, Illinois courts have found that the facts surrounding a guilty plea can only be offered to prove that the offender admitted the facts, but they cannot be used as prima facie evidence.

In federal matters, the Federal Rules provide that criminal convictions are admissible under an exception to the rule against hearsay. Federal Rule of Evidence 803(22). The rule, though, expressly excludes convictions based on nolo contendere pleas, because of protections provided by the confrontation clause of the Sixth Amendment. United States v. Koger, 646 F2d 1194, 1199-1200 (7^th Cir. 1981).

The most famous of these dual-natured cases is that of O.J. Simpson. In 1994, he was charged with murdering his ex-wife, Nicole Brown Simpson, and her friend, Ron Goldman. Although Johnny Cochran and his legal team were able to convince a jury that Simpson was not guilty beyond a reasonable doubt, when that was complete, the family was successful in the civil matter, where the legal standard was a preponderance of the evidence.

In a different venue – with no cameras in the courtroom – with a different judge, and a different jury, the family convinced the jury of Simpson’s liability and was awarded $33.5 million, which still remains largely uncollected.

Another significant difference was that Simpson was required to testify during the civil trial.

Our office tries to conduct its own investigation into civil matters, obtaining statements and orders to protect and preserve evidence when need be, but we never trial to impede the criminal investigation.

Frankly, allowing the criminal case to proceed first, as most judges prefer, has its advantages, and one can hear the witnesses and see the strategy of the defense prior to going to trial in the civil matter.

First and foremost, it is important to recognize that a guilty criminal defendant must be punished. He or she should not be allowed to use the system to escape criminal sanctions or civil liability.

While at the same time protecting the rights of the defendant, courts have found a fair and just way of using the evidence at a later proceeding through the doctrine of collateral estoppel.