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47 Ins. Counsel J. 384 (1980)
Admission of Criminal Judgment in Subsequent Civil Action

handle is hein.journals/defcon47 and id is 385 raw text is: INSURANCE COUNSEL JOURNAL - July, 1980 ADMISSION OF CRIMINAL JUDGMENT IN SUBSEQUENT CIVIL ACTION WILLIAM D. SICKER Daytona Beach, Florida Y OUR CLIENT has been sued by its insured for failure to pay a claim on a burned building. The reason your client refused to pay is that the policy prohibits recovery for intentional acts and the in- sured was convicted in criminal court for arson of that building. You would like to have the criminal con- viction admitted into evidence in the in- sured's case against your client. May you do so? In the past, the majority of jurisdic- tions, including Florida,1 would not allow such evidence before the jury. However, the trend in recent years has been to admit criminal convictions as evidence in a subse- quent civil trial. By making the judges aware of the rationale for the original rule forbidding admission and why that reason- ing is no longer valid today, perhaps you' can convince the judges that your jurisdic- tion should abandon the old rule of exclu- sion. Originally, the common-law rule was that a judgment from a criminal action was in- admissible in a subsequent civil action as proof of the facts upon which it was based.2 There were three reasons given for the rule. The reasoning was applied without distinc- tion to both convictions and acquittals. The first reason was that a conviction or acquittal might have been based upon the evidence of a party interested in the civil action. This was important because in early common law a party to a civil action could not be a witness. If a party to the civil ac- tion had testified earlier at the criminal trial, and the judgment was allowed in evi- dence in the civil action, that party would, in effect, be testifying in the civil action.3 iBoshnack v. Worldwide Rent-A-Car, 195 So2d 216 (Fla 1967). 250 C.J.S. Judgments §754(b) (1947) ; Annot., 18 ALR2d 1282 (1951); 1 GREENLEAF ON EVIDENCE, §537 (1899); 4 JONES ON EVIDENCE, §1816 (1926); 5 WIGMORE ON EVIDENCE, §1671 (a) (1974); 15 R.C.L. §476 (1929). sInterstate Dry Goods Stores v. Williamson, 91 WVa 156, 112 SE 301 (1922); Hatahway v. Burrow, 1 Camp 151, 170 E.R. 909 (1807); Smith v. Rum- mens, 1 Camp 9, 170 E.R. 858 (1807); Gibson v. WILLIAM D. SLICKER re- ceived his B.A. and J.D. degrees from Florida State University. He was a judi- cial aide to Judge Stephen H. Grimes of Florida's Second District Court of Appeal and subsequently was an associate in a firm engaged in insurance de- fense. He is presently a judicial aide to Judge Warren H. Cobb of Flor- ida's Fifth District Court of Appeal. This rule of procedure is obsolete, so this reason for exclusion is no longer valid.4 The second reason was that there is no mutuality because the parties to the two proceedings were different.5 The right to bring a civil action was not dependent up- on the success or failure of a criminal pros- ecution. If the criminal action ended in an acquittal, the injured party was not barred from bringing a civil action. Therefore, a person who was convicted was not barred from disputing the facts on which the con- viction was based in a subsequent civil ac- tion.6 The rationale was based on the com- mon-law maxim res inter alios acta alteri nocere non debet - a transaction between two parties ought not to operate to the dis- advantage of a third.7 The logic of this maxim is not violated by admitting the criminal conviction into evidence because the admission would op- erate to the advantage rather than the dis- advantage of the party seeking to introduce 41n re Crippen, 1 L.R. Prob. 108 (1911); 12 B. U. L. REV. 548 (1932). 5Petrie v. Nutall, 11 Ex. 569, 156 E.R. 957 (1856) Jones v. White, 1 Str. 68, 93 E.R. 389 (1717). 62 Freeman, JUDGMENTS §653, 654 (1925); 15 R.C.L. §476 (1929). 7Girard v. Vermont Mutual Fire Ins. Co., 103 Vt 330, 154 A 666 (1931); Mead v. Boston, 57 Mass (3 Cush.) 404 (1849). McCarty, Cases temp. Hardwicke 311, 95 E.R. 202 (1730). Page 384

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