DSK trial: Why Nafissatou Diallo can win a civil trial

James A. Cohen in Slate.fr, August 11, 2011

Media Source

by Cécile Dehesdin

As her lawyers announced the end of July, Nafissatou Diallo filed a civil action against Dominique Strauss-Kahn, even though the criminal trial is pending. The complainant can get from one side it will not have another. American justice is so very different from French justice.

Nesting Civil / Criminal

United States, the criminal and civil proceedings are completely separate. In the case of DSK, the criminal side was triggered by the "complaint" written by the police from the testimony of Nafissatou Diallo (more details on New York criminal procedure here).

Nothing prevents the maid-regarded as a mere witness in the criminal aspect of the case, to act civil when it becomes the complainant. As in France, the civil suit will not take place until the criminal component is not completed (either with a trial and sentence, or with the dropping of charges against DSK, or with a guilty plea).

The criminal takes precedence over the civil, already because the state pursuing the accused in criminal proceedings-is the American people and then goes before the single victim, and then for practical reasons: the prosecutor has no interest in that its evidence or witnesses to be presented to the civilian before he had a verdict on sentencing of the accused, and its possible imprisonment.

In France, the state is also pursuing criminal charges. The alleged victim can sue for damages in criminal proceedings if he or she wishes, and may even put in a public action, meaning "seize itself the court or judge, even prosecutors do not want, "says Master Eolas on his blog.

But it can also, as is the case in the United States, bring a civil action separate from the criminal trial. In this case, the civil courts cannot rule as the criminal court did not rule (a principle exemplified by the proverb "the criminal is the civil state," which applies now more than cases of this type, where the civil action seeks damages in compensation for the crime). Bring civil actions including giving the advantage to the victim to take advantage of the research evidence of the prosecutor, but the law generally gives victims the choice to opt for either solution.

The difference between the two systems then arrives in France, if the judge acquitting a criminal DSK, the civil judge could not order him to pay damages to Nafissatou Diallo, because of what is called "the authority of res judicata in the civil and criminal "civil court can not contradict the criminal court (this applies to intentional crimes as is the case in DSK, not for offenses not intentional)

In the United States on the contrary, DSK could well be acquitted in criminal and sentenced to pay damages to Nafissatou Diallo. That's exactly what happened in the case of O. J. Simpson jury of his criminal trial had been "a reasonable doubt" about his guilt and did not condemned, while facing the same elements, the civil jury determined that the evidence weighed in favor of his guilt.

What is the difference?

United States, the criminal is totally separate from the civil trial, and said separate trial jury told different, and different levels of certainty:

In criminal cases, the prosecutor must convince the jury of the guilt of the accused "beyond reasonable doubt." In other words, a juror must be almost certain that the accused is guilty (and the 12 jurors must agree).

While in civil, the victim has to make a "preponderance of evidence" (evidence that lean more to the responsibility of the accused). The jury need only be 51% sure that the accused is responsible. In New York there must be unanimity among the six jurors of civil, which is not the case in all states.

A convicted criminal will always be condemned to civil, where the jury needs to be "less certain" of his guilt. But a person exonerated by the criminal for the same reason can be ordered in civil court.

The American and French legal models are based on two very different conceptions of the role of criminal justice. Our model has a vision inquisitorial "substantial justice", where the aim of the trial is to reach the truth (and where, as the criminal judge is supposed to have the truth at the end of his trial, he can not be contradicted by the civil judge).

The model considers the American adversarial justice more procedural, where the emphasis is on process more than on its outcome [PDF], the idea being that if both parties vigorously defend their version of events being on equal and before a neutral arbitrator, the truth will emerge. Hence the importance of "cross-examination" in the trial to the U.S., since it is the interrogation and against-examination that are supposed to reveal the truth.

Contributed by the law professor at Fordham University James A. Cohen, Philippe Conte, director of the Institute of Criminology in Paris, and Benoist Hurel the Union of Magistrates.