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The Differences Between Civil and Criminal Trials in Indiana

Updated May 25, 2019 | By Wilson Kehoe Winingham staff

Civil and criminal trials are handled differently in Indiana. The process can be confusing, so use our guide to understand how they work.

Before the Trial

In a civil case, allegations are presented in the form of a complaint that is filed with the court by the plaintiff. The complaint contains the relevant facts and allegations of wrongdoings 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 states 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 decides whether or not a complaint should be filed against the defendant. Only the prosecutor can file the complaint. If the prosecutor decides 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 that take place before the trial and the selection of the jury. One or two days 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 that provide legal assistance to the poor. Prepaid legal insurance programs are 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 their 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 that 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 that 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 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 that guarantees the granting of their request.

Liable v. Guilty

Most people are aware that in a criminal case the judgment is either guilty or not guilty. In a civil case, however, the defendant is considered either liable or not liable. In a criminal case, the punishment is referred to as “sentencing,” in which fines, probation, and jail time may be imposed on the defendant. However, in a civil case, punishment is in the form of financial damages for which the defendant is liable to the plaintiff for the harm he or she caused the plaintiff.


The standards of proof are very different in criminal and civil proceedings. In a criminal case, a jury (or a judge in a bench trial) must conclude that the victim is guilty of the charge “beyond a reasonable doubt.” However, in a civil case, a jury (or judge) must conclude that the “preponderance of the evidence” demonstrates that the defendant is liable for the allegation.

In some circumstances in a civil trial, the intermediate standard of proof of “clear and convincing evidence” is applied. This standard is typically applied in case where there are very steep consequences, such as in the determination of parental rights or involuntary commitment to a psychiatric hospitalization. The difference between theses standards bears a strong relationship to the severity of the punishments available. Since criminal law has the possibility of incarceration, the stakes are much higher for the defendant and, as such, the public policy supports the idea that the proof should be much higher.

In a criminal case, the state bears the burden of proof in showing that the defendant is guilty. In a civil case, the burden is placed upon the plaintiff. However, in some cases, the burden can shift. For example, in many jurisdictions, an affirmative defense such as self defense must be demonstrated by the defendant. One example in a civil case would be in which the court finds that the circumstances meet the qualifications for res ipsa loquitur (negligence in itself), and thus an inference of negligence can be made. In that situation, the burden shifts to the defendant to prove that the negligence/breach did not occur.


In a criminal case, the jury is required to come up with a unanimous verdict. If they do not, it is considered to be a “hung” jury, and the state has the option of retrying the defendant. On the other hand, in civil cases, the defendant can still be found liable with a split jury decision.

Juries are told to resolve issues of fact and apply the law to those facts. Unlike in a civil case, in a criminal case a jury’s acquittal is not reviewable on appeal or otherwise. Thus, in a criminal context the jurors have the power to “nullify,” meaning they can acquit a criminal defendant despite clear evidence of guilt. In a criminal case, juries may simply not believe the evidence or feel that the law or its application in that particular case is unfair and, despite their instructions to the contrary, may choose to ignore the law in their decision. Because of this possibility, unlike in a civil case, a judge cannot issue directed verdict to a jury on an element because the jury retains the power to disregard the law (State ex rel. Family Support Div. – Child Support Enforcement v. Lane, 2010 WL 2265147 (Mo.App.,2010.)).

However, if the jury verdict is so absurd and significantly against the weight of evidence, sometimes the criminal judge, in very rare circumstances, will overturn the ruling when the jury enters a verdict of a guilty verdict by granting a defendants’ motion of a judgment n.o.v. (notwithstanding the verdict) or motion for a new trial. However, the prosecution cannot make this motion in the case of an acquittal.

The judge retains greater control over juries in a civil trial than a criminal trial. Sometimes in civil cases, judges require the juries to fill out what are called special verdict forms, which explain their decision for the parties. Additionally, the judge is more likely to make a decision for the jury either before or after the jury verdict with motion for judgment as a matter of law either before (directed verdict), after (n.o.v), or even issue a new trial if the judge feels that the verdict was almost outside what was reasonable or at odds with the law.

The standard for a judgement as a matter of law either before or after the jury issues its verdict is whether, in light of the evidence, a reasonable juror would not come to a different conclusion. In order to have a ruling for a judgment as a matter of law after the jury verdict, the motion must first be made prior to the verdict, and then if the judge chooses not to grant it, it is “suspended” and can be resubmitted after the jury comes back with their decision. Usually, the party will make a motion for a new trial along with this resubmitting of the motion, hoping that if the judge doesn’t want to completely overturn the jury verdict and possibly abuse their discretion, they will at least allow the case to be retried.

The focus of a jury in their deliberations in a criminal case and a civil case is often quite different. In a criminal case, the jury is looking specifically at the actions of the defendant and whether those actions constituted a criminal act. There are some situations in a criminal trial where the focus turns to the victim, such as in arguments of self defense, but the majority of the trial focuses on specifically the actions of the defendant.

In a civil trial, however, a significant portion of the trial will be regarding the damages to be awarded. Damages differ from a punishment since they are to compensate the victim or plaintiff for the harm caused by the defendant and thus aren’t determined by the actions of the defendant but by the consequences of those actions to the victim or plaintiff. Therefore, the evidence presented is focused on the plaintiff or the victim and consequences to them as a result of the defendant’s behavior.

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If you or a loved one have been injured as a result of another person’s negligence, contact an Indianapolis personal injury lawyer from Wilson Kehoe Winingham. The lawyers at WKW can help you get the compensation you deserve. Call 317.920.6400 or fill out an online contact form for a free, no-obligation case evaluation.

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