Criminal Damages In Small Claims Court
How to seek restitution for fraud and other crimes.
You can be the victim of a crime and still end up in small claims court to recover the damages suffered as a result of the offense against you.
A crime is the violation of a statute with criminal intent, criminal negligence or as part of a criminal scheme or undertaking. The type of statutes known as "criminal" statutes are those that are meant to prohibit or prevent conduct that unjustifiably causes harm to a citizen, simply because he is a citizen, a member of the public. Crimes are offenses against society as a whole, although they may affect only one citizen at a time.
These statutes are made into law by the legislatures of the different governmental units. City and county statutes are known as ordinances. In order to meet the tests of your state and the federal constitutions, they are written so that they give fair warning to all of the prohibited conduct.
The same kind of personal injury damage or property damage you can suffer as the result of a tort can be the result of a crime. White collar crimes usually involve injuries to business interests, and often involve fraudulent conduct.
If you are the victim of a crime, the rights that are violated are said to be public rights, because a crime is an offense against the general peace and dignity of all persons. As a victim, technically you are only a witness in a criminal case, like any other witness. The prosecutor represents all the people and works for the government. She is the lawyer on your side because you are a member of the society whose laws she has sworn to enforce, but the attorney-client relationship, one derived from a private contract, does not exist between you.
Making Good On Bad Acts
A person convicted of a crime is punished. Incidental to the punishment, the wrongdoer may also be ordered to pay restitution. When restitution is ordered as part of a sentence, the convicted person is ordered to restore to the victim the provable value of the damage resulting from the crime. Most of the time this payment is a condition of the guilty person's staying out of jail. As a result, there is a greater likelihood of your being made whole financially when restitution is ordered as part of the sentence in a criminal case, and when it is made a condition of the criminal remaining free. In this case, the criminal defendant holds the keys to the jailhouse in his hand and does not need to go there at all unless you are not paid. People will quickly come up with money with the threat of a lockup hanging over their heads. Unless the criminal has a long record, it is likely that you will be paid without having to file a lawsuit.
If you have suffered damage as the result of the crime, you need to be able to show the prosecutor the dollar value of the damage and to let the prosecutor know that you would like to be notified at every stage of the case. Be persistent. If you have not been notified about the progress of the case for a time that seems long to you, call the prosecutor. After all, he or she works for you, the taxpayer.
If you can, go to the sentencing hearing, let the judge know you are the victim, and tell him or her how much you have lost. You may get it back. But being the victim of a crime does not do away with your rights to bring a civil action for the damage done to you. If restitution is not ordered as part of the sentence in the case, or even if the bad guy is found not guilty at trial, you keep your right to sue and recover, just as in any other case where you have suffered a substantial loss. A defendant in a criminal case must be proven guilty of the crime to a moral certainty and beyond a reasonable doubt-a very difficult level of proof. This is why a criminal defendant is never found innocent, only not guilty, if acquitted. To win in a civil case, you need only prove that your evidence is a little better than that offered by the opposition. It needs to weigh a little more on the scales of justice. Simply because a prosecutor fails to prove an act beyond a reasonable doubt does not mean that you cannot prove it by the greater weight of the evidence.
One special caution in these cases: Statistics show that 90 percent of crimes are committed by 10 percent of the population. Statistics show, too, that most of that 10 percent is not going to have money or property to satisfy your claim even if you get judgment against them. If they have nothing, you may end up with nothing but the warm feeling that comes from having met the challenge of doing something you have not done before.
If you want to pursue your claim as a matter of principle, because you are in a business where it is likely you will need to learn how to win a small claims case, or because you think it would be fun, go ahead! The person who has no money now might have some later. Judgments stay alive, and are collectible for extended periods-up to seven years in many states.
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