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How is a Crime Different from a Tort?

A tort and a crime both involve harm to someone. How do they differ? Professor Paul Cassell discusses examples of harmful actions that could be either a crime or a tort. In order to prove something is a crime, the burden of proof is much higher than for a tort. In Tort Law, the standard is “what would the reasonable person have done in this situation?” Whereas in Criminal Law, the prosecutor has to prove that the defendant wilfully committed a specified crime. https://youtube.com/watch?v=zccCSbxEWR8


Let's take an example of something that probably could be both a tort and a crime. Let's say texting while driving leads to an accident. So one way to address what's happened is for the victim of that accident to sue under Tort law to say, “wait a minute, a reasonable person wouldn't be driving a car down the road while they were texting.” The medical expenses from the accident were $50,000. And so pain and suffering was more money on top of that, and that could be litigated in the context of a civil tort case. Now, it's interesting there, the question is going to be, “What would a reasonable person be doing while they're driving?” Would it be reasonable or unreasonable to be texting? And that's one of the things that's interesting. Of course, what the reasonable person might do could evolve over time. It might be that, initially, there's no understanding that texting is very dangerous. But then maybe, people start to see in the news lots of accidents that are caused that way. Maybe cell phones migrate from being handheld to, to voice activated to kind of reduce the risk and maybe somebody didn't use the voice activation feature and instead was punching buttons while they were, while they were driving. Those would all be things that we'd look at in the civil case. But let's take that same situation now over into the criminal law. Let's, to make it a little more dramatic, let's assume that because of texting while driving somebody was killed we're not just going to say, well, gosh, I wonder whether you know, a reasonable person might have done this one way or the other. We're going to want to make sure that before we condemn someone as being a criminal, that it's clear that there is some kind of intentional action that goes well beyond mere civil negligence. I suppose in some situations there could be what we call criminal negligence, which is an extreme departure from what the ordinary standards are. But most typically we're gonna have crimes involving what we call a, a mental state or mens rea we're gonna be saying, was this person in fact, reckless? And so one of the ways that the criminal code would typically try to address, let's say, an accident leading to a death, is to say, was this something that the defendant was aware of and said, essentially, “I don't care.” In other words, conscious risk creation is something that we look for in the criminal law. Somebody says, well, I know texting's kind of dangerous, but I don't care. And then lo and behold tragically an accident occurs, that's gonna be a situation where the criminal law is going to be deployed and we're going to look to a criminal code. If you compare tort law to criminal law, there are a lot of analogies. You probably saw things if you've taken a tort law class where somebody's been injured by actions of another. And the question then is how to figure out what sort of compensation is available and how to assess liability in the civil context. But the criminal law is going to be different. We're not going to look to vague notions of who is the reasonable person. Because we're so worried about the possibility of governmental abuse, we're going to spell out in our criminal law in advance what the standards are. So you won't read a statute that says, well, it's a crime to do something that a reasonable person wouldn't do. That would be viewed as unduly vague and create due process problems or other problems. Instead, it's one of the tenets of criminal law that there has to be a great deal of specificity about exactly what is a crime. That's another check on governmental power. The government can't manufacture crimes. It has to rely on crimes that are in the criminal code that have been specified in advance, typically specified in writing in that criminal code. And that way everyone knows, alright, I don't want to become a criminal. What are the boundaries? The boundaries are well defined.

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