Staying Connected Civil Case While Criminal Case Pending
I have a car wreck case where the defendant, charged with negligent homicide arising from the wreck, is resisting participating in a scheduling conference or deposition in my civil case until the criminal case is resolved. Is there any authority to let them do that?
Answer: I don't see the down side of awaiting the trial of the criminal case. If the guy is convicted, the conviction will make your civil case. If he is acquitted, you can limine the finding since the acquittal doesn't come into the civil case. See:
Evidence - Acquital in Related Criminal Case
Laughlin v. Lamar, 1951 OK 330,¶ 4, 237 P.2d 1015, 1016: " . . .As a general rule, a judgment of conviction or acquittal of a party charged with crime cannot be given in evidence in a civil action to prove or negative facts upon which it was rendered." quoting Goodwin v. Continental Casualty Co., 175 Okl. 469, 53 P.2d 241, 242. Cited in anno. 18 A.L.R.2d 1287 "Conviction or acquital as evidence of the facts on which it is based in civil action." But see: Benham v. Plotner, 1990 OK 64, 795 P.2d 510: A final conviction is conclusive of the facts necessary to establish the judgment, citing Lee v. Knight, 1989 OK 50, 771 P.2d 1003: A conviction pending on appeal is admissible, but is not conclusive. Party against whom offered may offer explanatory evidence. (Evidently, rule in Laughlin is modified by evidence code - see Benham ¶ 6, 795 P.2d at 512.
This puts you in a position where you can win but you cannot lose. The more probable outcome is that the DA let's the defendant plead nolo in the criminal case, in which case you proceed with your civil case and have to prove your case. That's the worst outcome you can have. I see no advantage to hauling him in and having him take the fifth in the depostion. I suspect your judge will feel likewise.
You just need to stay after the DA to make him plead guilty or take the criminal case to trial.
Posted on Mon, June 16, 2014
by Travis Law Office filed under