Before the Trial
In a civil case, the allegations are presented in the form of a complaint which is filed with the court by the plaintiff. The complaint contains the relevant facts and allegations of wrong doings of the defendant. The defendant is then “served” by service of process. There are differing rules between the state and federal court systems and between the various state as to what constitutes valid service. The defendant can then file an Answer to the complaint with the court, affirming or denying the plaintiff’s allegations or file a motion like a motion to dismiss. It the defendant doesn’t respond or show up, the judge can enter a default judgement against them.
In a criminal case, a defendant is first arrested based on probable cause that the defendant violated a criminal law. Law enforcement officials then present the evidence to the prosecutor, who then decides whether or not a complaint should be filed against the defendant. Only the prosecutor can file the complaint. If the prosecutor does decide to do so, then a complaint is filed in the court listing the relevant facts and the alleged criminal violations.
In both criminal and civil cases there are many proceedings which take place before the trial and the selection of the jury. One or two days in a work are often set aside as “motion days” where pretrial motions are submitted and ruled on by a judge. In a civil case, a judge also presides over pretrial conferences with all parties. There they set the plan for trial and the discovery process, and the judge works with the parties to encourage them to settle the case. If they cannot reach an agreement, the judge will attempt to narrow the legal and factual issues before the commencement of the trial. In the criminal process, an arraignment is first done before the judge. There the judge presents the formal charges listed in the complaint to the defendant and makes a determination on bail. Following that, the court conducts a preliminary hearing where the prosecutor puts forth evidence demonstrating there is enough probable cause to go to trial. Like in a civil case, a pretrial conference is also had between the defense attorney and the prosecutor before the trial.
Right to an Attorney
The Supreme Court of the United States held in Gideon v. Wainwright that the sixth amendment requires that the government provide an attorney and other assistance in order to get a fair trial in all criminal cases where imprisonment is a possible result of a guilty verdict. However, no such right exists for civil cases. Since 1964 significant efforts have been made to equalize the playing field in civil cases and allow defendants fair representation in trial. There has been an increase in federal funding for programs which provide legal assistance to the poor. Prepaid legal insurance programs are also becoming more common. The contingent fee system is also providing an incentive for successful attorneys with resources to take on poorer clients.
Furthermore, there have been some modifications to the traditional “American Rule”, in which each party pays their own costs of proceedings. More recently, in some specific causes of action winning parties can recover court costs and attorney fees. Additionally procedural devices through the discovery process to prevent unfair surprise to either party and as well as the imposition of sanctions by judges are helping limit abuse of discovery rules to provide a fair civil trial for both parties.
Right to Jury
The sixth amendment provides that for all criminal proceedings, the defendant is entitled to a speedy and public trial in front of an impartial jury. However, not all criminal trials are held before a jury. The criminal defendant retains the power to waive his right to a jury trial and have what is called a “bench trial”, in which the judge serves as both fact finder and rules on the matter of law at hand. Courts have held as well that for petty offenses there is not right to a jury. Riemers v. Eslinger, 781 N.W.2d 632 (N.D.,2010). The important issue in determining whether or not there is a right to a jury trial depends on the harshness of the punishment which may be imposed if the defendant is found guilty, but no definite rule has been established through judicial proceedings.
In civil cases not every case must be tried in front of a jury either. The Constitutional provision providing for the right of jury trial in civil cases only refers to cases which were civil actions available under the common law in 1791 when the Constitution was adopted. Allen v. Anderson, 57 Ind. 388 (Ind.,1877). Thus, the determination of whether or not there is a right to a jury in a civil case can be tricky. It is determined by looking at the essential character and nature of the claim for relief sought in the pleadings. Stevens v. Olsen, 713 N.E.2d 889 (Ind.App.,1999). Furthermore, right to a jury trial extends only to issues of fact and not law. Sumpter v. State, 340 N.E.2d 764 (Ind. 1976). Law in the case is determined by the judge. It is also important to note that a defendant in a criminal case may seek a speedy trial through a statutory procedure, but there is no comparable procedure for a “speedy trial” in the civil context. Presumably, a party could make a formal request to set the case for trial on the first available date, but there is nothing which guarantees the granting of their request.
In the upcoming part 2 of this article published next week we will look at liability vs. guilt, standards of proof and the function of the jury.