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Millions in the United States, including many in Virginia Beach, VA, were riveted to their television set over the July 4th holiday weekend watching the prosecution and defense deliver closing arguments, and watching the judge deliver jury instructions before the jurors retire to deliberate. The viewers actually got a constructive civics lesson on the judicial system in United States, and this is a fairly good thing no matter what happens in the casel that has grabbed the attention of the nation.

One of the family members watching this on TV with me asked if the judge always has to give these long jury instructions. The answer is yes. In every civil and criminal trial in United States, whether in state or federal court, the judge presiding over the case must provide the jury with the set of legal instructions that govern their deliberations.

It is unclear whether Casey Anthony would be covered under her own parents homeowner’s insurance policy or not, but these type policies cover insured persons for negligent and accidental injuries or deaths that the insured homeowner or the covered residents may cause, but the policies usually exclude intentional acts of the homeowners. Murder that was intended would likely not be covered under such a policy, so this complicates any wrongful death action being contemplated to recover for the death of Casey Anthony’s daughter and for her other family member’s losses besides Casey’s. However, with all the family in-fighting at the murder trial, the likelihood of a civil wrongful death action seems dim (read more below).

Even in civil cases involving personal injury in Virginia or other states, there is a long set of jury instructions that the judge delivers. What most folks don’t realize is that, usually, the attorneys on both sides of the case submit the jury instructions that they say apply to the facts of the case and, ultimately, the judge must pore through the instructions submitted by both attorneys and then arrive at what he or she considers to be the proper instructions for jury.

Other questions that have arisen amongst family members watching the trial is why one party goes first and who gets the rebuttal argument. The answers here, and in criminal trials in general, are that in the Casey Anthony murder trial, the prosecution has the burden of proving beyond a reasonable doubt that the defendant committed the crimes for which she has been charged and, therefore, goes first. The defense always gets to respond, but the final chance for rebuttal is given to the prosecution.

In personal injury trials in Virginia, and in virtually every other state, however, the personal injury lawyer representing the victim goes first because they have the burden of proof. In a civil injury case, the burden of proof is the greater weight of evidence — a much lower standard than for criminal trials.

Likewise, if you remember the O.J. Simpson murder trial and wrongful death civil trial, the civil trial wrongful death suit burden of proof was only the greater weight of the evidence. That is one reason the attorneys prosecuting the wrongful death case were able to prevail.

Another constructive question involves whether some person or party has the right to bring a wrongful death civil action against Casey Anthony after the criminal trial is over. The answer is that even though the victim, Calylee Anthony, was a minor, she was considered to have an intangible estate under the law in Florida. So, the question of whether the right to bring a wrongful death action exists is easily answered yes. The more important legal question, though, is whether there will be assets or an insurance policy that could pay if a party brought a wrongful death action on the toddler’s behalf. And, who would bring the suit?

Normally, a parent would control a wrongful death action for a child against a responsible party. However, many states have passed laws that prohibit any person involved in a criminal act against the minor or child victim from recovering as the estate’s representative in a wrongful death action. Such a statute would clearly apply to this circumstances if the jury finds Casey Anthony guilty of any criminal charge. But, based on acquittal of the criminal charges involving criminal homicide, Casey Anthony likely has the right to actually bring a civil suit, but against whom? Not herself of course.

A wrongful death action can still be brought in favor of her deceased daughter under the wrongful death statute of Florida. Each state provides different wrongful death act details, but, usually, funeral and burial expenses, medical expenses incurred before death, lost wages or income, loss of consortium, grief, solace and some other forms of losses are recoverable. These type policies cover insured persons for negligent and accidental injuries or deaths that the insured homeowner or the covered residents may cause, but usually exclude intentional acts of the homeowners. Murder that was intended would likely not be covered under such a policy.

Update: The jury acquitted Casey Anthony of felony and murder charges. Given this outcome, a wrongful death suit against her, on behalf of her daughter’s estate, could be brought by the daughter’s estate (against her own mother) but this would likely require court action to appoint any person besides the deceased daughter’s parents as representatives who could bring a wrongful death action.


About the Editors: The Shapiro, Cooper, Lewis & Appleton personal injury law firm, which has offices in Virginia (VA) and North Carolina (NC), edits the injury law blogs Virginia Beach Injuryboard, Norfolk Injuryboard and Northeast North Carolina Injuryboard as pro bono services.


  1. Gravatar for Kevin Kelleher
    Kevin Kelleher


    I've heard that at least one Aunt of Caylee was very mad at Casey, after she was first charged, even before the verdict. Could she sue for wrongful death?


    The weak jury got it wrong (they had to search another town in FL for people who knew little about the case, and only took 1/2 a day to decide not guilty, showing up the next morning in suits ...). Two jurors did not pass high school, and two others said they did not like to judge. To suggest this was a hard core death jury was a joke!

    Peterson and Lawyer Tom Capano got death with no knowledge of exactly how, when, and where the deaths occured. Casey was clearly proven guilty of manslaughter, not 1st degree murder.

    And where did they get that Burden of Proof chart? Very misleading with Guilty beyond reasonable doubt at the top. Visually, this suggests 100% guilty. There should be one or two boxes above that, with the top being Truely Guilty.

    Thanks for your reply.

    An old "Court TV" junkie,


  2. Gravatar for kevin kelleher
    kevin kelleher

    Rick, how about a quick answer to my question ??

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