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In court proceedings, a defendant is a
person
A person (plural, : people) is a being that has certain capacities or attributes such as reason, morality, consciousness or self-consciousness, and being a part of a culturally established form of social relations such as kinship, ownership of pr ...
or object who is the
party
A party is a gathering of people who have been invited by a host for the purposes of socializing, conversation, recreation, or as part of a festival or other commemoration or celebration of a special occasion. A party will often feature ...
either accused of committing a
crime
In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Ca ...
in
criminal prosecution
A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the civil law inquisitorial system. The prosecution is the legal party responsible for presenting the case in a criminal trial ...
or against whom some type of civil relief is being sought in a
civil case.
Terminology varies from one
jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
Ju ...
to another. In
Scots law
Scots law () is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Ireland ...
, the terms "accused" or "panel" are used instead in criminal proceedings and "defender" in civil proceedings. Another term in use is "respondent".
Criminal defendants
In a criminal trial, a defendant is a person accused (
charged) of committing an offense (a crime; an act defined as punishable under
criminal law). The other party to a criminal trial is usually a public
prosecutor
A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the civil law inquisitorial system. The prosecution is the legal party responsible for presenting the case in a criminal tria ...
, but in some jurisdictions, private prosecutions are allowed.
Criminal defendants are often taken into custody by
police
The police are a constituted body of persons empowered by a state, with the aim to enforce the law, to ensure the safety, health and possessions of citizens, and to prevent crime and civil disorder. Their lawful powers include arrest a ...
and brought before a court under an
arrest warrant
An arrest warrant is a warrant issued by a judge or magistrate on behalf of the state, which authorizes the arrest and detention of an individual, or the search and seizure of an individual's property.
Canada
Arrest warrants are issued by a ...
. Criminal defendants are usually obliged to post
bail
Bail is a set of pre-trial restrictions that are imposed on a suspect to ensure that they will not hamper the judicial process. Bail is the conditional release of a defendant with the promise to appear in court when required.
In some countrie ...
before being released from custody. For serious cases, such as murder, bail may be refused. Defendants must be present at every stage of the proceedings against them. (There is an exception for very minor cases such as traffic offenses in jurisdictions which treat them as crimes.)
If more than one person is accused, the people may be referred as "co-defendant" or "co-conspirator" in British and common law courts.
In some jurisdictions, vulnerable defendants may be able to get access of services of a
non-registered intermediary to assist with communication at court.
Civil defendants
In a civil
lawsuit
-
A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil actio ...
, a defendant (or a respondent) is also the accused
party
A party is a gathering of people who have been invited by a host for the purposes of socializing, conversation, recreation, or as part of a festival or other commemoration or celebration of a special occasion. A party will often feature ...
, although not of an offense, but of a
civil wrong
Civil may refer to:
*Civic virtue, or civility
*Civil action, or lawsuit
* Civil affairs
*Civil and political rights
*Civil disobedience
*Civil engineering
*Civil (journalism), a platform for independent journalism
*Civilian, someone not a membe ...
(a
tort
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishabl ...
or a
breach of contract
Breach of contract is a legal cause of action and a type of civil wrong, in which a binding agreement or bargained-for exchange is not honored by one or more of the parties to the contract by non-performance or interference with the other par ...
, for instance). The person who starts the
civil
Civil may refer to:
*Civic virtue, or civility
*Civil action, or lawsuit
* Civil affairs
*Civil and political rights
*Civil disobedience
*Civil engineering
*Civil (journalism), a platform for independent journalism
*Civilian, someone not a membe ...
action through filing a
complaint is referred to as the
plaintiff
A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the ...
(also known as the appellant).
Defendants in civil actions usually make their first court appearance voluntarily in response to a summons. Historically, civil defendants could be taken into custody under a writ of ''
caspian ad respondent''. Modern-day civil defendants are usually able to avoid most (if not all) court appearances if represented by a
lawyer
A lawyer is a person who practices law. The role of a lawyer varies greatly across different legal jurisdictions. A lawyer can be classified as an advocate, attorney, barrister, canon lawyer, civil law notary, counsel, counselor, solici ...
.
Most often and familiarly, defendants are persons: either
natural person
In jurisprudence, a natural person (also physical person in some Commonwealth countries, or natural entity) is a person (in legal meaning, i.e., one who has its own legal personality) that is an individual human being, distinguished from the bro ...
s (actual human beings) or
juridical person
A juridical person is a non-human legal person that is not a single natural person but an organization recognized by law as a fictitious person such as a corporation, government agency, NGO or International (inter-governmental) Organization (su ...
s (''persona fiction'') under the
legal fiction
A legal fiction is a fact assumed or created by courts, which is then used in order to help reach a decision or to apply a legal rule. The concept is used almost exclusively in common law jurisdictions, particularly in England and Wales.
Deve ...
of treating organizations as persons. But a defendant may be an object, in which case the object itself is the direct subject of the action. When a court has jurisdiction over an object, it is said to have
jurisdiction ''in rem''. An example of an ''in rem'' case is ''
United States v. Forty Barrels and Twenty Kegs of Coca-Cola'' (1916), where the defendant was not the
Coca-Cola Company
The Coca-Cola Company is an American multinational beverage corporation founded in 1892, best known as the producer of Coca-Cola. The Coca-Cola Company also manufactures, sells, and markets other non-alcoholic beverage concentrates and syrups ...
itself, but rather "Forty Barrels and Twenty Kegs of Coca-Cola". In current United States legal practice, ''in rem'' suits are primarily
asset forfeiture
Asset forfeiture or asset seizure is a form of confiscation of assets by the authorities. In the United States, it is a type of criminal-justice financial obligation. It typically applies to the alleged proceeds or instruments of crime. This ...
cases, based on drug laws, as in ''
USA v. $124,700'' (2006).
Defendants can set up an account to pay for litigation costs and
legal expenses. These
legal defense fund In the United States, a legal defense fund (or LDF) is an account set up to pay for legal expenses, which can include attorneys' fees, court filings, litigation costs, legal advice, or other legal fees. The fund can be public or private and is set ...
s can have large membership counts where members contribute to the fund. The fund can be public or private and is set up for individuals, organizations, or a particular purpose. These funds are often used by public officials, civil-rights organizations, and public-interest organizations.
England and Wales
Historically, "defendant" was a legal term for a person prosecuted for
misdemeanour
A misdemeanor (American English, spelled misdemeanour elsewhere) is any "lesser" criminal act in some common law legal systems. Misdemeanors are generally punished less severely than more serious felonies, but theoretically more so than adm ...
. It was not applicable to a person prosecuted for
felony
A felony is traditionally considered a crime of high seriousness, whereas a misdemeanor is regarded as less serious. The term "felony" originated from English common law (from the French medieval word "félonie") to describe an offense that res ...
.
[ O. Hood Phillips. '' A First Book of English Law''. Sweet and Maxwell. Fourth Edition. 1960. Page 151.]
See also
*
Asset forfeiture
Asset forfeiture or asset seizure is a form of confiscation of assets by the authorities. In the United States, it is a type of criminal-justice financial obligation. It typically applies to the alleged proceeds or instruments of crime. This ...
*
Attribution (law)
Doctrines of attribution are legal doctrines by which liability is extended to a defendant who did not actually commit the criminal act.
* Criminal procedure
Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail o ...
*
Trial
In law, a trial is a coming together of parties to a dispute, to present information (in the form of evidence) in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court. The tribun ...
References
{{Authority control
Criminal law legal terminology