On Sept. 2, the National Enquirer claimed "Kobe Bryant is trying to pay off his alleged victim." Specifically, the Enquirer reported that Bryant and his lawyers twice flew from California to meet with his accuser's lawyer in Colorado and offered to pay her $5 million to settle her claims against him. Bryant's attorney has issued a strong denial. But suppose the Enquirer's report checks out. Is it illegal to try to pay your accuser a big-bucks civil settlement before your criminal trial begins?
The short answer is no—though doing so can sometimes prove unethical or unwise. Lawyers can try to work out a settlement of potential civil claim at any time, as long as both sides comply with ethics rules requiring them to keep the criminal and civil cases separate. They need not wait for a civil complaint to be filed. But in practice, accusers often wait to sue—or even talk settlement—until after the criminal trial concludes because it will help them to wait and may hurt them to go forward.
If accusers wait, prosecutors will do much of their work for them. Once a crime has been proved beyond a reasonable doubt in a criminal trial, satisfying the far lower "preponderance of the evidence" standard in a civil case is generally smooth sailing. To win by a "preponderance of the evidence," the civil plaintiff must only show that it's more likely than not she is right.
Meanwhile, if accusers do go forward with an early civil settlement, their testimony in the criminal trial may be severely undermined. Jurors in criminal cases can sometimes hear evidence of civil settlement talks, offers, and agreements. Under Colorado Rule of Evidence 408, for example, jurors may hear such evidence to prove "bias or prejudice of a witness." As it is, Bryant's defense is likely to suggest that his accuser—who reportedly tried to become an American Idol contestant—is lying because she seeks fame and fortune. She would hardly want to accept a multimillion dollar settlement and play into their hands.
The parties and their lawyers are free to settle now, if they choose, but they are not free to say—or offer—anything they want during settlement talks. Lawyers on both sides must never appear to suggest that any settlement might affect the accuser's testimony at the criminal trial. Otherwise, they could face not only disbarment for an ethics violation but jail for obstructing justice, aiding and abetting bribery, or even (in the case of the accuser's lawyer) extortion.
If the parties do manage to avoid all these traps and settle the civil case, the criminal trial may still go forward. Even if the accuser asks prosecutors to drop the charges, they can proceed and subpoena her to compel her to testify, even against her will. But such a move might prove foolhardy in this situation: In a case likely to be so heavily dependent on the word of a single witness, prosecutors won't win if that witness is unwilling and her testimony is flawed. They may make a practical calculation that under the circumstances a criminal trial is not a good way to spend Colorado's money.
Similar calculations may have led authorities, in 1993, not to proceed with charges that Michael Jackson had sexually abused a 13-year-old boy. Jackson reportedly paid over $15 million to settle civil claims. No criminal charges were ever filed.
Explainer thanks Professor Deborah Rhode of Stanford Law School and Professor Erwin Chemerinsky of University of Southern California Law School.