A defendant is a person
accused of committing a crime
in criminal prosecution
or a person against whom some type of civil relief is being sought in a civil case
Terminology varies from one jurisdiction
to another. For example, Scots law
does not use the term "defendant"; the terms "accused" or "panel" are used instead in criminal proceedings, and "defender" in civil proceedings.
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
, but in some jurisdictions, private prosecutions are allowed.
Criminal defendants are often taken into custody by police
and brought before a court under an arrest warrant
. Criminal defendants are usually obliged to post bail
before being released from custody. For serious cases, such as murder, bail is often 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.
In a civil lawsuit
, a defendant (or a respondent) is also the accused party
, although not of an offense, but of a civil wrong
or a breach of contract
, for instance). The person who starts the civil
action through filing a complaint
is referred to as the plaintiff
(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
Most often and familiarly, defendants are persons: either natural person
s (actual human beings) or juridical person
s (''persona fiction'') under the legal fiction
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
itself, but rather "Forty Barrels and Twenty Kegs of Coca-Cola". In current US legal practice, ''in rem'' suits are primarily asset forfeiture
cases, based on drug laws, as in ''USA v. $124,700
Defendants can set up an account to pay for litigation costs and legal expense
s. These legal defense fund
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
. It was not applicable to a person prosecuted for felony
[O. Hood Phillips. ''A First Book of English Law''. Sweet and Maxwell. Fourth Edition. 1960. Page 151.]
* Attribution (law)
* Criminal procedure
Category:Criminal law legal terminology