Use of criminal convictions in subsequent civil trials

Transcription

1 Evidence Use of criminal convictions in subsequent civil trials By Brian S. Kabateck and Shant A. Karnikian A tortfeasor s acts giving rise to a personal injury lawsuit may also be the basis for criminal charges. As a common example, a driver of a vehicle who hits a pedestrian may face both civil and criminal consequences, depending on the facts specific to the accident. Consider this hypothetical: A pedestrian is walking on the edge of a rural road when a vehicle, traveling in the same direction as the pedestrian, slightly swerves and strikes the pedestrian. The pedestrian is killed instantly. The driver of the vehicle is not under the influence or engaging in any other unlawful conduct. The driver is, however, charged with misdemeanor vehicular manslaughter, in violation of Penal Code Section 192(c)(2). 1 The criminal case proceeds to trial, during which the defense attorney argues that the pedestrian Brian S. Kabateck is managing partner of Kabateck Brown Kellner LLP in Los Angeles. He represents victims in mass torts litigation, class actions, insurance bad faith, personal injury, and wrongful death litigation. He has been named one of the 100 most influential plaintiff lawyers in America, and a California Lawyer Attorney of the Year. He is a former president of CAOC. Shant A. Karnikian is an associate with Kabateck Brown Kellner LLP in Los Angeles. His practice focuses on consumer class actions and mass torts litigation. contributed to his or her own death by wearing dark clothes, walking in the road, and walking in the wrong direction. The jury rejects the argument and finds the driver guilty, beyond a reasonable doubt, of misdemeanor vehicular manslaughter. The jury instructions used in the criminal trial require a jury to consider whether the defendant committed the otherwise lawful act with ordinary negligence. (Judicial Council of California Criminal Jury Instruction ( CALCRIM ) 593.) Subsequently, the victim s family files a wrongful death suit against the driver of the vehicle. 2 The question now becomes: How can the criminal conviction be used to the plaintiffs advantage in the subsequent civil case? This article explores three potential uses of the criminal conviction in a subsequent civil case: 1. Whether the conviction is admissible in the civil trial; 2. Whether the conviction can be used to establish defendant s liability; and 3. Whether the conviction precludes the defendant from raising the issue of contributory negligence in the civil trial. Admissibility of the criminal conviction Criminal convictions are considered hearsay and are therefore generally inadmissible. However, Evidence Code Section 1300 creates an exception for convictions of a crime punishable as a felony when the conviction is being offered in a subsequent civil case to prove a fact determined as part of the conviction. It is important to note that Evidence Code Section 1300 only applies to criminal convictions for crimes punishable as a felony. In our hypothetical scenario here, the driver was convicted of vehicular manslaughter in violation of Penal Code Section 192(c)(2), punishable by up to a year in jail, and thus a misdemeanor. Accordingly, the hearsay exception for felony convictions would not apply to this scenario, and evidence of the conviction would be excluded from the civil trial. However, if the defendant in this scenario had been convicted of a crime punishable as a felony, such as causing an injury while driving under the influence in violation of California Vehicle Code Section (commonly referred to as felony D.U.I. ), Evidence Code Section 1300 would apply, and the conviction would be admissible in the subsequent civil trial, subject to Evidence Code Section 352. A felony D.U.I. conviction may also allow plaintiffs to recover punitive damages and attorney fees under Taylor v. Superior Court (1979) 24 Cal.3d 890. Collateral estoppel effect of criminal conviction In addition to the hearsay exception created by Evidence Code Section 1300, which only addresses the evidentiary use (e.g. admissibility) of the criminal conviction for a felony in a subsequent civil trial, it is well established by case law that a litigant s conviction in a criminal case may be used for purposes of collateral estoppel or res judicata in subsequent civil actions as it applies to issues determined in the previous criminal case. Accordingly, courts often preclude re-litigation of issues decided in prior criminal cases if certain requirements are met. 26 FORUM July/August 2015 Consumer Attorneys Of California

2 A felony D.U.I. conviction may also allow plaintiffs to recover punitive damages and attorney fees The doctrines of collateral estoppel and res judicata establish that once a case has reached a final judgment, re-litigation of the claims and issues is generally barred. Res judicata gives conclusive effect to a former judgment in subsequent litigation between the same parties involving the same cause of action. (7 Witkin, Cal. Proc. 5th (2008) Judgm, 401, p ) Collateral estoppel, also referred to as issue preclusion involves a second action between the same parties on a different cause of action. (Rest.2d, Judgments 27 et seq.) The first action is not a complete merger or bar, but operates as an estoppel or conclusive adjudication as to such issues in the second action which were actually litigated and determined in the first action. (Todhunter v. Smith (1934) 219 C. 690.) In the present example, given that the claims are different but the defendant s negligence is at issue in both cases, the inquiry would be whether the collateral estoppel doctrine applies. In 1962, the California Supreme Court held that doctrine of collateral estoppel precludes parties or others in privity with those parties from re-litigating issues decided in prior criminal proceedings that have been finally determined by a court of competent jurisdiction. (Teitelbaum Furs, Inc. v. Dominion Ins. Co. (1962) 58 Cal.2d 601.) Teitelbaum held that any issue necessarily decided in such prior criminal proceedings is conclusively determined as to the parties or their privies if it is involved in a subsequent lawsuit even on a different cause of action. Even though the principle in Teitelbaum and the exception in Evidence Code 1300 apply to felony convictions, the mere fact that a conviction was for a misdemeanor stephanie phillips rather than a felony does not defeat the application of collateral estoppel in subsequent civil trials. (Mueller v. J.C. Penney Co. (1985) 173 Cal.App.3d 713, 721 n.9.) Mueller held that if due process requirements are met, collateral estoppel may apply similarly to misdemeanor convictions. The judicial concern with a prior misdemeanor conviction is that the misdemeanor be for a serious offense, so that the criminal defendant was motivated to ligate fully (e.g., one where the sentencing guidelines provide for jail time). Whether the doctrine is applicable or not must be decided by the court looking at the actions taken to defend the case and not at the potential penalties. (Id. at ) Collateral estoppel may be applied only if due process requirements are satisfied. (Id.) In 1986, the Court of Appeal for the Second District clarified that the collateral estoppel effect of a criminal conviction extends beyond felony convictions. (Leader v. State of California (1986) 182 Cal.App.3d 1079.) The Leader court held that a misdemeanor conviction may also be used for collateral estoppel purposes in subsequent civil trials on a case-by-case basis. Leader set forth a guideline upon which application of collateral estoppel can be premised. When applying collateral estoppel based on a former misdemeanor conviction, the criteria are as follows: First, the prior conviction must have been for a serious offense so that the defendant was motivated to fully litigate the charges (now determined to include misdemeanors pursuant to the Mueller case). Second, there must have been a full and fair trial to prevent convictions of doubtful validity from being used. Third, the issue upon which the prior conviction is offered must necessarily have been decided at the criminal trial. Fourth, the party against whom collateral estoppel is asserted was a party, or in privity with the party at the prior trial. (Ayers v. City of Richmond (1990) 895 F.2d 1267, 1271; Lumpkin v. Jordan (1996) 49 Cal.App.4th 1223, 1230; McGowan v. City of San Diego (1989) 208 Cal.App.3d 890, 895. See generally, Leader (1986) 182 Cal. App.3d 1079.) Plaintiffs should keep in mind that there are certain limitations to the framework that allows a conviction to be used for purposes of collateral estoppel. Although a felony conviction based on a guilty plea may be admissible to the extent that it is an admission, it does not qualify as grounds for establishing collateral estoppel. (Allstate Ins. Co. v. Overton (1984) 160 Cal. App.3d 843, 848 n.3.) Additionally, factual determinations made in sentencing hearings or preliminary hearings do not have a preclusive effect in subsequent civil cases. (Maciel v. Commissioner (2007) 489 F.3d 1018, 1024; McCutchen v. City of Montclair (1999) 73 Cal.App.4th 1138, ) Last, the criminal proceeding must be determined finally for subsequent courts to apply a finding of collateral estoppel. (People v. Huston (1989) 210 Cal. App.3d 192, 224.) When the law does not offer a recognized exception from the doctrine of collateral estoppel, litigants attempting to avoid unfavorable results have often raised various arguments against the doctrine that have been found ineffective. (1 Cal. Affirmative Def. 15:11 (2d ed).) Section 352 of the Evidence Code permits the court to exclude evidence when its probative value is substantially outweighed by its prejudicial effect. However, Evidence Code Section 352 does not offer an independent basis for avoiding the doctrine of collateral estoppel. (Leader v. State of California (1986) 182 Cal.App.3d 1079, 1090 [declining to apply Evidence Code 352].) Accordingly, even though the court may exclude evidence of the conviction if it finds that the probative value is substantially outweighed by the prejudicial impact, a court may still find that an issue cannot be re-litigated in a subsequent civil trial. Nor can a litigant argue that their Seventh Amendment right to a jury trial is being violated if a civil action is precluded Consumer Attorneys Of California July/August 2015 FORUM 27

3 based on the collateral estoppel effect of issues decided in a previous criminal trial. (McGowan v. City of San Diego (1989) 208 Cal.App.3d 890, 897.) The contributory negligence dilemma The collateral estoppel effect of a criminal conviction in a subsequent trial for purposes of establishing fault or liability appear to be well defined by the courts. If a defendant s liability is established in a criminal case as part of the elements of the crime, the conviction even for a misdemeanor will collaterally estop the defendant from re-litigating that issue in subsequent civil trial. However, case law is unclear as to whether evidence and arguments of comparative fault or contributory negligence can also be excluded from subsequent civil trials if the jury in the criminal trial did not necessarily decide these matters. In examining this issue in the context of two consecutive civil actions, it is clear that if the issue of contributory negligence was adjudicated and was decided against the plaintiff who is in privity with the plaintiff in the subsequent civil action, it will have a preclusive estoppel effect. This was illustrated in Zaragosa v. Craven (1948) 33 Cal.2d 315. In Zaragosa, an adverse verdict for a husband in a right to sue action constituted an estoppel, or was res judicata, in the present action, which was a suit by the wife against the same defendant previously unsuccessfully sued by her husband, seeking recovery for her personal injuries sustained in the same accident. The court pointed out that the issues of the defendant s negligence, and the husband s contributory negligence, which was to be imputed to the wife, had already been decided in the prior case and could not be retried. However, courts have not dealt with this dilemma in the context of examining the effect of a finding in a criminal proceeding on a subsequent civil trial when contributory negligence is raised as a defense and a means for reducing a plaintiff s damages. Consider our hypothetical: A jury convicts a criminal defendant of misdemeanor vehicular manslaughter. Throughout the criminal trial, the defense argues that the victim s actions contributed to his or her own death. The jury instructions for vehicular manslaughter require a jury to find that a defendant committed the otherwise lawful act with ordinary negligence. (CALCRIM 593.) The victim s family subsequently brings a civil action for negligence against the criminal defendant. Would the finding of negligence inherent in the criminal conviction have a collateral estoppel effect in the civil trial? More perplexingly, should the defendant be allowed to argue again, in the civil action, that the victim contributed to his or her injury? Under Teitelbaum, the finding of negligence under the CALCRIM 593 instruction may have a collateral estoppel effect. Since it is a misdemeanor, Mueller requires that the requirements in Leader be satisfied: First, the court must consider whether the charge in the defendant s prior criminal case, vehicular manslaughter, may be considered a serious offense which motivated [the defendant] to fully litigate the charges[.] (Ayers, 895 F.2d at 1271.) As the charge carries the possibility of jail time it will likely be considered serious for purposes of the collateral estoppel doctrine. (Leader, 182 Cal.App.3d at 1088.) Next, the court must consider whether the defendant in the criminal trial, receive[d] the benefits of rigorous safeguards against unjust conviction, including the requirements of proof beyond a reasonable doubt.... (Mueller, 173 Cal. App.3d at 721 (quoting Teitelbaum, 58 Cal.2d at 606).) Third, the issue upon which the prior conviction is offered must necessarily have been decided at the criminal trial. In this scenario, in order for the prosecution to prove that the defendant violated Penal Code Section 192(c)(2) in the criminal case, the prosecution had to prove that the defendant committed the otherwise lawful act with ordinary negligence. (CAL- CRIM 593.) Defendant s negligence was established in the criminal case, indeed to a higher evidentiary standard beyond a reasonable doubt. 28 FORUM July/August 2015 Consumer Attorneys Of California

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5 Lastly, the least contentious issue is whether the party against whom collateral estoppel is asserted, was a party or in privity with the party at the prior trial. In this scenario, the defendant is the same person in both cases. For purposes of this discussion, and to illustrate the dilemma courts may face, the third prong above must be revisited. Even though the defendant s negligence was undoubtedly established in the conviction, and this prong of the analysis is satisfied for purposes of estoppel of re-litigation of the issue of defendant s negligence, it is unclear whether the issue of the victim s contributory negligence or lack thereof was necessarily adjudicated or decided. Case law is inconclusive as to how this issue would be resolved and has not addressed this issue directly. On the one hand, the mere fact that the victim s own negligence was alleged as part of the defense in the criminal case doesn t mean that the issue of contributory negligence was necessarily decided in the criminal trial. A defendant will undoubtedly argue that it would be unfair to hold otherwise when the jury instructions in the criminal case never required the jury to specifically consider the victim s own negligence. On the other hand, contributory negligence would have necessarily created a certain degree of reasonable doubt in the mind of the jury, and it failed to do so. The jury in the criminal case, in finding that the defendant was negligent beyond a reasonable doubt already rejected albeit to an incalculable extent the notion that the victim s actions contributed to their injury. But where should that line be drawn? How much contributory negligence by a victim is required until a reasonable doubt is raised as to the defendant s liability? What if the defendant s entire defense in the criminal trial was premised upon the argument that the victim contributed to the injury? What if the defense, throughout the criminal trial, consistently argued that the pedestrian was walking in the road, wore dark clothes, and was walking on the wrong side of the street? Should the convicted criminal defendant turned civil defendant now be able to have another shot at mounting the very same defense which was already rejected to a certain extent by a jury? It would appear that the jury should be advised that the defendant cannot now re-argue his or her liability, or at a minimum, be informed of the conviction. However, as explained above, even though the conviction will have a collateral estoppel effect in terms of establishing liability, any mention of the misdemeanor conviction must be excluded as hearsay. In fact, even if the defendant here were convicted of a crime punishable as a felony, it would still be unclear whether the defendant may allege in the civil trial that the victim was contributorily negligent. This is the unsettled question in California law: How do the courts reconcile the doctrine of collateral estoppel which favors precluding the re-litigation of an issue that was conclusively determined with the hearsay principle that excludes a misdemeanor criminal conviction from a subsequent civil trial? Even more perplexing is the challenge of allowing the conviction to have a preclusive effect as to the issue of negligence, while simultaneously excluding the conviction, but precluding re-litigation of the issue of the victim s contributory negligence. In such a scenario, it appears that a court would have to pick its poison: Infer a finding by a jury on an issue they weren t specifically asked to consider, or allow a convicted criminal found guilty (and thereby negligent) beyond a reasonable doubt turned civil defendant to have a second bite at the apple. n 1 Penal Code Section 192(c)(2) defines vehicular manslaughter as driving a vehicle in the commission of an unlawful act, not amounting to a felony, but without gross negligence; or driving a vehicle in the commission of a lawful act which might produce death, in an unlawful manner, but without gross negligence. 2 As a precautionary measure, plaintiffs may want to hold off on filing civil suit until after the criminal case is resolved. This gives plaintiffs significant advantages including, but not limited to, precluding defendant from invoking the Fifth Amendment in the civil trial. RETAIL INDUSTRY EXPERT WITNESS EVALUATE ALL ISSUES OF INDUSTRY STANDARDS OF CARE IN: * SUPERMARKETS * GENERAL MERCHANDISE STORES * HOME IMPROVEMENT CENTERS * RESTAURANTS * FAST FOOD OPERATIONS * WAREHOUSE STORES * SPECIALTY STORES * CONVENIENCE STORES * SMALL BUSINESS OPERATIONS INDUSTRY STANDARDS ISSUES INCLUDE: * Slip/Trip and Fall * Floor Care & Maintenance Procedures * Store Security * ADA Compliance * Merchandising Procedures * Loss Prevention * Food Handling Procedures * Internal Operation Procedures * Wrongful Termination Alex J. Balian, MBA (818) Plaintiff s Expert - Ortega vs. K-Mart 30 FORUM July/August 2015 Consumer Attorneys Of California