When There Is a Criminal Case: How a Prosecution and the Civil Case Relate

When a death is caused by a drunk driver, a reckless driver, or a violent act, your family may find itself inside two very different legal processes at once. One is the criminal case, brought by the state against the person charged. The other is the civil case for wrongful death, brought on behalf of your family. They involve the same tragedy, but they have different purposes, different rules, and different timelines.

This chapter explains how the two fit together and why you should not wait for the criminal case to end before protecting the civil claim.

Two cases with two different purposes

The criminal case belongs to the State of Ohio. A prosecutor decides what charges to file, whether to offer a plea agreement, and whether to go to trial. The goal is to hold the person accountable to the public through punishment such as prison, jail, probation, or a license suspension. Your family is not a party to the criminal case, and Ohio law makes clear that a court will not dismiss a criminal charge just because a victim asks, over the prosecutor's objection (R.C. 2930.06(A)(4)).

The civil case belongs to your family. In Ohio, a wrongful death action is brought by the personal representative of your loved one's estate (the person the probate court appoints to act for the estate) for the benefit of the surviving spouse, children, parents, and other next of kin. Its purpose is compensation for your family's losses, which our chapter on damages explains.

Ohio's wrongful death statute says plainly that a civil claim exists even when the death was caused under circumstances that make it aggravated murder, murder, or manslaughter (R.C. 2125.01).

Different burdens of proof

The most important difference between the two cases is how much proof is required.

In a criminal case, the person charged is presumed innocent, and the state must prove every element of the crime beyond a reasonable doubt (R.C. 2901.05(A)). It is the highest standard in the law.

A civil case uses a lower standard. In general, your family must show that its version of events is more likely true than not, which lawyers call proof by a preponderance of the evidence.

This difference explains outcomes that can feel confusing or unfair:

• A not-guilty verdict does not end the civil case. An acquittal means only that the state could not prove guilt beyond a reasonable doubt. The same evidence may still meet the civil standard.
• No charges does not mean no claim. Prosecutors decline to file charges for many reasons. The Supreme Court of Ohio has recognized that crimes can be committed without a conviction, and it held that Ohio's statute allowing a civil action for injuries caused by a criminal act does not require an underlying criminal conviction. Buddenberg v. Weisdack, 161 Ohio St.3d 160, 2020-Ohio-3832, syllabus and paragraphs 11 to 13 (interpreting R.C. 2307.60). Most civil claims rest on negligence and never depended on a criminal charge at all.

Your family's rights in the criminal case

Article I, Section 10a of the Ohio Constitution, commonly called Marsy's Law, took effect in 2018. It gives crime victims enforceable rights, including fair and respectful treatment, notice of and presence at public proceedings on request, the right to be heard at release, plea, sentencing, and parole proceedings, the right to confer with the prosecutor, proceedings free from unreasonable delay, and full and timely restitution. The victim's lawful representative may assert these rights.

Chapter 2930 of the Ohio Revised Code puts those rights into practice. When the person who was harmed has died, family members can step in:

• A victim's representative. In homicide cases, including vehicular homicide, a member of your loved one's family, a victim advocate, or another person designated by family members may exercise the victim's rights (R.C. 2930.02(A)(1)(c)). If more than one person asks to serve, the court designates one (R.C. 2930.02(C)).
• Ask for your rights in writing. After charges are filed, the prosecutor's office should give you information about the case and a victim's rights request form. Rights that are not requested on the form may be treated as waived, though you can request them later (R.C. 2930.06(C)(7)(a)). Fill out the form and keep a copy.
• Confer with the prosecutor. On request, the prosecutor must, to the extent practicable, confer with you before agreeing to a plea deal, before amending or dismissing the charges, before pretrial diversion, and before trial (R.C. 2930.06(A)(1)). You can share your views, though the decision remains the prosecutor's.
• Be present and be heard. You have the right to attend public proceedings, other than grand jury proceedings, and to have a support person with you (R.C. 2930.09(A)(1)). You can be heard on a proposed plea agreement and at hearings about the defendant's release (R.C. 2930.09(B) and (D)).
• Speak at sentencing. Before sentence is imposed, the court must let the victim's representative be heard orally, in writing, or both, and that statement is not subject to cross-examination (R.C. 2930.14(A)).
• Have your own lawyer. Ohio law recognizes a "victim's attorney," a lawyer retained to assert the victim's constitutional and statutory rights in the criminal case (R.C. 2930.01(Y)).

Many prosecutors' offices have victim advocates who help families through these steps. Our chapter on caring for your family lists other sources of support.

Restitution: helpful, but limited

When a person is convicted of a felony, the court must order restitution to the victim or the victim's estate unless the victim chooses not to seek it (R.C. 2929.18(A)). Restitution is based on economic loss, which Ohio defines to include lost income, medical costs, and funeral expenses caused by the offense. It does not include non-economic loss, such as grief and lost companionship, or punitive damages (R.C. 2929.01(L)). Courts can also order restitution in many misdemeanor cases, though not for offenses that can be handled by a traffic violations bureau (R.C. 2929.28(A)(1)).

Two points matter for the civil case. First, restitution does not prevent your family from bringing a civil action (R.C. 2929.18(H)). Second, restitution payments are credited against any recovery of economic loss in a later civil action against the same person, so the same expense is not paid twice (R.C. 2929.18(A)(1)). Restitution usually covers only a small part of what the law recognizes, and many defendants cannot pay it quickly; full compensation is usually pursued in the civil case, often through insurance. See our chapter on insurance coverage.

Can a conviction be used in the civil case?

Sometimes, and it depends on the type of conviction and how it came about.

• Serious violent felonies. Under R.C. 2307.60(A)(2), a final conviction, entered after a trial or a guilty plea, for an offense of violence punishable by more than one year in prison generally prevents the offender from denying, in a later civil case based on the same act, any fact essential to the conviction. There are narrow exceptions for extraordinary circumstances.
• Felony convictions as evidence. Ohio Evidence Rule 803(22) allows evidence of a final judgment of conviction for a crime punishable by death or more than one year in prison, entered after a trial or a guilty plea, to prove facts essential to the judgment.
• Guilty pleas. Under Ohio Criminal Rule 11(B)(1), a guilty plea is a complete admission of guilt. Depending on the circumstances and the rules of evidence, a guilty plea, including a plea to a lesser charge, may be usable in the civil case.
• No contest pleas. A plea of no contest cannot be used against the defendant in a later civil case (Crim.R. 11(B)(2); Evid.R. 410(A)(2)). Defendants sometimes choose this plea for exactly that reason. If you have a chance to confer with the prosecutor about a plea, it is fair to ask about it.

Even without a usable conviction, evidence gathered in the criminal case, such as crash reconstruction, toxicology results, and witness statements, often becomes important in the civil case.

Timing: do not wait for the criminal case to finish

Criminal cases can take many months or longer. Meanwhile, Ohio's deadline for a wrongful death lawsuit is generally two years after the date of death (R.C. 2125.02(F)(1)), and the criminal case does not reliably pause that clock. Our chapter on deadlines explains the rule and its exceptions.

A lawyer can protect the civil claim while respecting the prosecution: opening the estate, notifying insurers, preserving evidence the police did not collect, and filing within the deadline. The civil case may move slowly while charges are pending, because a defendant may decline to testify to avoid incriminating themselves, or a court may pause parts of it. What matters early is that the claim is preserved. Our chapter on how cases are resolved describes the civil process, and our page on drunk driver wrongful death cases covers issues specific to impaired-driver crashes.

Common questions