dissenting:
I respectfully dissent. There is no question that this wrongful death action was filed outside the applicable Utah statute of limitations. There is likewise no question that Plaintiffs knew of the tortious death of Mr. Allred well within that statutory period. What Plaintiffs and the majority of this court rely on is the assertion that one or both of two doctrines apply to toll the running of the statute. These are the doctrines of fraudulent concealment and exceptional circumstances.
My problem with this case is that, under Utah law, both the fraudulent concealment doctrine and the exceptional circumstances doctrine are only applicable if the plaintiff could not reasonably have known that she had a cause of action against the defendant within the limitation period. Warren v. Provo City Corp., 838 P.2d 1125, 1129, 1130 (Utah 1992).1 For me, the threshold *533issue here is whether a reasonable plaintiff would have known that a cause of action existed against Ms. Chynoweth within the period allowed by the statute of limitations. Unlike the majority, I do not believe that the acquittal of Defendant in her trial for the murder of Mr. Allred plays any important role in the analysis of this case. If Plaintiffs reasonably could have known that they had a cause against Defendant before the criminal trial, Defendant’s intervening acquittal under the “beyond a reasonable doubt” standard does not alter the legal sufficiency of the prior reasonable knowledge or excuse further diligence if, as I believe, the prior knowledge was sufficient to put her on notice of her cause of action.2
In any case, the determination that Ms. Chynoweth was not proven guilty beyond a reasonable doubt was not in any way a determination that Ms. Chynoweth did not commit the murder in this case and therefore would not be liable under a wrongful death cause of action. It is well established that
an acquittal on criminal charges does not prove that the defendant is innocent; it merely proves the existence of a reasonable doubt as to his guilt.... [T]he jury verdict in the criminal action did not negate the possibility that a preponderance of the evidence could show that [the defendant committed the crime charged].
United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361-62, 104 S.Ct. 1099, 1104, 79 L.Ed.2d 361 (1984).3 Indeed, “[t]he very purpose of distinguishing the criminal standard of proof is to protect against conviction on a showing that might satisfy the lower standard generally required in civil actions.” 18 Charles A. Wright et al., Federal Practice and Procedure § 4422, at 210 (1981).4
There are numerous published cases where the prosecution or some other litigant has attempted to prove, by a preponderance of the evidence, that a criminal defendant actually committed a crime for which he had been acquitted under the “beyond a reasonable doubt” standard. They have arisen in such diverse settings as parole revocation, sentence enhancement, determination that a person was a co-conspirator for hearsay purposes, and forfeiture proceedings. See, e.g., One Assortment of 89 Firearms, 465 U.S. at 361-62, 104 S.Ct. at 1104 (forfeiture); One Lot Emerald Cut Stones v. United States, 409 U.S. 232, 235, 93 S.Ct. 489, 492, 34 L.Ed.2d 438 (1972) (per curiam) (forfeiture); United States v. Galloway, 976 F.2d 414, 431 n. 4 (8th Cir.1992) (en banc) (Beam, J., dissenting) (collecting cases), cert. denied, — U.S.-, 113 S.Ct. 1420, 122 L.Ed.2d 790 *534(1993); Johns v. Shulsen, 717 P.2d 1336, 1338 (Utah 1986) (collecting cases); Wright et al., supra, § 4422 n. 2 (collecting cases). These cases generally enter the law books when the defendant attempts, unsuccessfully, to invoke issue preclusion based on his prior acquittal. While a few of them have been on appeal from an erroneous dismissal, e.g. One Lot Emerald Cut Stones, supra, many others have been on appeal from a successful showing, by a preponderance of the evidence, that, notwithstanding the acquittal, the defendant did commit the crime charged, e.g., One Assortment of 89 Firearms; United States v. Rodriguez-Gonzalez, 899 F.2d 177 (2d Cir.), cert. denied, 498 U.S. 844, 111 S.Ct. 127, 112 L.Ed.2d 95 (1990).
This precise situation recently arose in the State of Utah in Johns v. Shulsen, 717 P.2d 1336 (Utah 1986). Soon after being paroled from a prior conviction, the plaintiff was arrested and charged with a variety of sexual and weapons offenses. Id. at 1336. He was acquitted on all counts. Id. Nevertheless, the government successfully proved, by a preponderance of the evidence, that the plaintiff violated his parole by committing the charged offenses. Id. at 1336-37. The Utah Supreme Court rejected his petition for habeas corpus, stating:
It is universally recognized that the standard of proof in civil actions is by a preponderance of the evidence.... By contrast, in a criminal prosecution every element of the offense must be established beyond a reasonable doubt. Therefore, the failure of the State to prove the elements of the charged crime beyond a reasonable doubt cannot logically estop another fact finder ... from finding that those same elements were proven by a preponderance of the evidence.
Id. at 1338 (emphasis added) (citations omitted).
Given this large body of cases where litigants have succeeded in doing what Plaintiffs did not even attempt, I cannot accept the majority’s claim that Plaintiffs acted reasonably in not bringing the suit earlier.
A very similar situation arose several years ago in Louisiana in Richards v. LaCour, 515 So.2d 813 (La.Ct.App.1987). The defendant was arrested for arson in connection with a fire that damaged the plaintiffs’ building in July, 1983. Id. at 815. The defendant was arrested that October, and was indicted that November. Id. at 815, 818. He pleaded not guilty. Id. at 815. In June 1986, well after Louisiana’s one year statute of limitations had run, he changed his plea to guilty. Id. The plaintiffs filed suit approximately one month after his guilty plea. Id.
The Louisiana Court of Appeal held that the statute of limitations barred the plaintiffs’ suit. The court rejected the plaintiffs’ claim that they could not have filed their suit earlier because the defendant falsely denied responsibility and because they were unable to obtain information from law enforcement officials due to the pending criminal charges. The court explained:
[Pjlaintiffs knew of [the defendant’s] criminal indictment at least by November 18, 1983.... This was sufficient to put them on notice as to his identity and to call for inquiry which is all that is necessary to commence the running of [the limitations period]. Between the time of defendant’s indictment and guilty plea, plaintiffs were aware of the defendant’s identity and had the opportunity to timely file civil proceedings against him....
... Plaintiffs’ failure to obtain information from law enforcement officials ..., because of the pending criminal charges against defendant, does not prevent [the limitations period] on their claim from commencing to run from the date of the fire any more than would a claim by a plaintiff involved in an accident, that he had to await until he knew the exact facts of a defendant’s negligence before filing suit, would prevent [the limitations period] from commencing to run from the date of the accident. [The limitations period] begins to run when there is notice enough to call for inquiry about a claim, not from the time *535when the inquiry reveals facts or evidence sufficient to prove the claim.
Id. at 817-18.
I do not claim that Louisiana’s rule on accrual is identical to Utah’s. It is well established in Utah
that a cause or right of action arises the moment an action may be maintained to enforce it and that the statute of limitations is then set in motion. The test, therefore, is, Can an action be maintained upon the particular cause of action in question? If it can, the statute begins to run.
State Tax Comm’n v. Spanish Fork, 99 Utah 177, 100 P.2d 575, 577 (1940) (quoting Sweetser v. Fox, 43 Utah 40, 134 P. 599, 602 (1911)); see also Davidson Lumber Sales, Inc. v. Bonneville Inv., Inc., 794 P.2d 11, 19 (Utah 1990) (“A tort cause of action accrues when it becomes remediable in the courts, that is, when all elements of a cause of action come into being.”) (citing Spanish Fork). This is somewhat different from the standard applied in Richards.
Nevertheless, the point of Richards remains the same, because the present Plaintiffs had a maintainable action many years before they filed their suit. There were no pre-requisites to filing suit that had not occurred and that would have rendered their action unripe. Ms. Chynoweth’s tor-tious actions were complete, and her identity was well known to Plaintiffs. She was amenable to service of process. Further, Plaintiffs could have presented, within the statutory period, the testimony of two different accomplices detailing Ms. Chynow-eth’s participation in the murder.
I recognize that the case against Ms. Chynoweth was far from airtight at the time of her first trial.5 Nevertheless, Spanish Fork and Davidson Lumber clearly do not stand for the proposition that an action is not “maintainable,” and that the statute of limitations does not begin running, until the plaintiff possesses evidence so overwhelming that success is .assured. Thus, absent a specific exception, the Utah statute of limitations bars this action. While there are, under Warren, exceptions to the statute in some circumstances, these are limited to litigants who were unaware that they had a basis for a suit. They do not extend to any litigant who was uncertain of victory.
The majority reinforces its arguments with reference to Ms. Chynoweth’s actions. It states: “After lying at trial and convincing a jury to acquit her, she cannot argue that plaintiffs should have known a cause of action existed based on probable cause hearings.” Maj.Op. at 532. The majority concludes by stating:
Because Ms. Chynoweth does not contest liability, she cannot assert the delay has impaired her ability to present a defense. Her only claim is that plaintiffs should not be able to recover because she successfully prevented them from discovering her liability for many years. That is not within the ambit of equitable concern which motivates the adoption of statutes of limitations.
Id. at 532.
Both these statements fit squarely within Utah exceptions to the statute of limitations. The former statement is an example of the doctrine of fraudulent concealment, “whereby a defendant who causes a delay in the bringing of a cause of action is estopped from relying on the statute of limitations as a defense to the action.” Warren, 838 P.2d at 1130. The latter statement is an example of the doctrine of exceptional circumstances, which occurs when the unique facts of a case “render the application of a statute of limitations irrational or unjust.” Id. at 1129.
These arguments, however, do nothing to meet the threshold requirement for both of these doctrines that the plaintiff have acted reasonably in not filing her action sooner. *536Utah has clearly made a policy determination that even if the defendant fraudulently conceals facts, and even «/exceptional circumstances are present which make the bar of the statute of limitations irrational and unjust, the defendant will nevertheless not be held accountable if the plaintiff unreasonably delayed filing her suit. See id. at 1129, 1130.6 The majority concedes as much. See Maj. Op. at 530.
There is absolutely no evidence or even an assertion that Plaintiffs made any attempt to pursue their action, or for that matter even consult counsel, to determine their rights and obligations until after Defendant published her book. One is left to conclude that what is involved here are plaintiffs who reasonably knew they had a cause of action against a defendant but elected not to pursue it because of an assumption that the defendant was impecunious. The publication of Defendant’s book with its despicable confession created the possibility of income which could be attached. While clearly understandable, that objective does nothing to toll the statute of limitations. What is more, in light of Simon & Schuster, Inc. v. New York Crime Victims Bd., — U.S.-, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991), it seems doubtful that Utah could constitutionally amend its statute to toll until publication produced sufficient funds to make the suit economically, as opposed to legally, viable. On this record that is precisely what the trial court and the majority have done by adjustment of the existing Utah limitations doctrine.
Courts which enforce statutes of limitations are rarely on the side of the angels. Nonetheless, for centuries, and for good and sufficient reasons, legislatures have enacted and courts have enforced statutes of limitations with the emotionally uncomfortable results of this case.
I freely concede that Ms. Chynoweth is an utterly unsympathetic defendant. Doctrines of repose nonetheless dictate that if a party reasonably should have been aware of the existence of a cause of action, the failure to file the action in a timely manner precludes an examination of the merits of the matter in any way.
. In earlier cases, the Utah Supreme Court referred to a plaintiff seeking to invoke the exceptional circumstances doctrine as having an obligation to “exercise[ ] due diligence in discovering” their cause of action. Beeton Dickinson & Co. v. Reese, 668 P.2d 1254, 1257 (Utah 1983) (citing Myers v. McDonald, 635 P.2d 84, 87 (Utah *5331981). I agree with the majority’s apparent conclusion that there is no difference between the "reasonableness” standard of Warren and the "due diligence" standard of Becton and Myers, and that the proper phrasing of the test is whether a "reasonable plaintiff, exercising due diligence” would have been aware of the cause of action. Maj. Op. at 532.
. I do not concede that her pre-criminal trial knowledge was insufficient.
. The holding of One Assortment of 89 Firearms in the context of weapons forfeiture has been superceded by the amendments to 18 U.S.C. 924(c) (1988) contained in the Firearms Owner’s Protection Act, Pub.L. No. 99-308, § 104, 100 Stat. 449, 457 (1986).
. The Supreme Court determined in In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), that the “beyond a reasonable doubt” standard was constitutionally required in criminal cases. It discussed at length the vast differences between the two standards:
[W]e reject the ... suggestion that there is, in any event, only a "tenuous difference” between the reasonable-doubt and preponderance standards. The suggestion is singularly unpersuasive. In this very case, the trial judge’s ability to distinguish between the two standards enabled him to make a finding of guilt that he conceded he might not have made under the standard of proof beyond a reasonable doubt. Indeed, the trial judge’s action evidences the accuracy of the observation of commentators that "the preponderance test is susceptible to the misinterpretation that it calls on the trier of fact merely to perform an abstract weighing of the evidence in order to determine which side has produced the greater quantum, without regard to its effect in convincing his mind of the truth of the proposition asserted.” Dorsen & Rez-neck, [In Re Gault and the Future of Juvenile Law, 1 Family L.Q. No. 4, at 1,] 26-27.
Id. at 367-68, 90 S.Ct. at 1074.
. The judge presiding over the criminal proceedings stated that "[ojther than the testimony of the two accomplices, no evidence was presented which, without the aid of the testimony of the accomplices, tended to connect the defendant with the commission of any of the offenses charged.” (Appellant's App. at 20.) As the district court noted, the testifying eyewitnesses to the murder were unable to positively identify Ms. Chynoweth. (Id. at 72.) In her book, Ms. Chynoweth admitted that she woré a disguise to confuse witnesses. (Id. at 27.)
. This rule merely reflects the ancient maxim that “[e]quity aids the vigilant, not those who slumber on their rights.” Standard Oil Co. of N.M. v. Standard Oil Co. of Cal., 56 F.2d 973, 975 (10th Cir.1932).