Defendant

Defendant

Overview
A defendant or defender (Δ
Delta (letter)
Delta is the fourth letter of the Greek alphabet. In the system of Greek numerals it has a value of 4. It was derived from the Phoenician letter Dalet...

in legal shorthand) is any party who is required to answer the complaint
Complaint
In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons that the filing party or parties In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties In...

 of a plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...

 or pursuer
Pursuer
A pursuer in Scotland is the party who initiates a lawsuit before a Court of Scotland. The term is the same in civil and criminal proceedings. The pursuer is seeking a legal remedy, and if successful, the court will issue judgment in favour of the pursuer and make the appropriate court order...

 in a civil lawsuit before a court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...

, or any party who has been formally charged
Indictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...

 or accused of violating a criminal
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...

 statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...

. Respondent
Respondent
A respondent is a person who is called upon to issue a response to a communication made by another. In legal usage, this specifically refers to the defendant in a legal proceeding commenced by a petition, or to an appellee, or the opposing party, in an appeal of a decision by an initial fact-finder...

is the parallel term used in a proceeding which is commenced by petition
Petition
A petition is a request to do something, most commonly addressed to a government official or public entity. Petitions to a deity are a form of prayer....

.

In criminal law in many jurisdictions, a defendant is anyone tried as the accused.
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Encyclopedia
A defendant or defender (Δ
Delta (letter)
Delta is the fourth letter of the Greek alphabet. In the system of Greek numerals it has a value of 4. It was derived from the Phoenician letter Dalet...

in legal shorthand) is any party who is required to answer the complaint
Complaint
In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons that the filing party or parties In legal terminology, a complaint is a formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties In...

 of a plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...

 or pursuer
Pursuer
A pursuer in Scotland is the party who initiates a lawsuit before a Court of Scotland. The term is the same in civil and criminal proceedings. The pursuer is seeking a legal remedy, and if successful, the court will issue judgment in favour of the pursuer and make the appropriate court order...

 in a civil lawsuit before a court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...

, or any party who has been formally charged
Indictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...

 or accused of violating a criminal
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...

 statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...

. Respondent
Respondent
A respondent is a person who is called upon to issue a response to a communication made by another. In legal usage, this specifically refers to the defendant in a legal proceeding commenced by a petition, or to an appellee, or the opposing party, in an appeal of a decision by an initial fact-finder...

is the parallel term used in a proceeding which is commenced by petition
Petition
A petition is a request to do something, most commonly addressed to a government official or public entity. Petitions to a deity are a form of prayer....

.

In criminal law in many jurisdictions, a defendant is anyone tried as the accused. However, convention in Scotland does not recognise the use of the term "defendant" in criminal proceedings and the terms "accused" or "panel" are used instead.

A defendant in a civil action usually makes his or her first court appearance voluntarily in response to a summons, whereas a defendant in a criminal case is often taken into custody by police and brought before a court, pursuant to an arrest warrant
Arrest warrant
An arrest warrant is a warrant issued by and on behalf of the state, which authorizes the arrest and detention of an individual.-Canada:Arrest warrants are issued by a judge or justice of the peace under the Criminal Code of Canada....

. The actions of a defendant, and its lawyer counsel, is known as the defense. Historically, a defendant in a civil action could also be taken into custody pursuant to a writ of capias ad respondendum
Capias ad respondendum
In the common law legal systems, capias ad respondendum is or was a writ issued by a court to the sheriff of a particular county to bring the defendant, having failed to appear, to answer a civil action against him.Under the American legal system, this writ was replaced by the practice of...

and forced to post bail
Bail
Traditionally, bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail...

 before being released from custody. However, a modern day defendant in a civil action is usually able to avoid most (if not all) court appearances if represented by a lawyer
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...

, whereas a defendant in a criminal case (particularly a felony
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...

 or indictment
Indictment
An indictment , in the common-law legal system, is a formal accusation that a person has committed a crime. In jurisdictions that maintain the concept of felonies, the serious criminal offence is a felony; jurisdictions that lack the concept of felonies often use that of an indictable offence—an...

) is usually obliged to post bail before being released from custody and must be present at every stage thereafter of the proceedings against him or her (they often may have their lawyer appear instead, especially for very minor cases, such as traffic offenses in jurisdictions which treat them as crimes).

Most often and familiarly, defendants are persons, either natural person
Natural person
Variously, in jurisprudence, a natural person is a human being, as opposed to an artificial, legal or juristic person, i.e., an organization that the law treats for some purposes as if it were a person distinct from its members or owner...

s (actual human beings), or legal persons (persona ficta) under the legal fiction
Legal fiction
A legal fiction is a fact assumed or created by courts which is then used in order to apply a legal rule which was not necessarily designed to be used in that way...

 of treating organizations as persons; this is known as jurisdicition in personam
In personam
In personam is a Latin phrase meaning "directed toward a particular person". In a lawsuit in which the case is against a specific individual, that person must be served with a summons and complaint to give the court jurisdiction to try the case, and the judgment applies to that person and is called...

. Alternatively, the defendant may be an object, which is known as jurisdiction in rem
Jurisdiction in rem
In rem is a legal term describing the power a court may exercise over property or a "status" against a person over whom the court does not have "in personam jurisdiction"...

, in which case the object itself is the direct subject of the action, with a person only indirectly subject to the action. An example of an in rem case is United States v. Forty Barrels and Twenty Kegs of Coca-Cola
United States v. Forty Barrels and Twenty Kegs of Coca-Cola
United States v. Forty Barrels and Twenty Kegs of Coca-Cola, , was a federal suit under which the government unsuccessfully attempted to force the Coca-Cola company to remove caffeine from its product.-Claim:...

(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
Asset forfeiture
Asset forfeiture is confiscation, by the State, of assets which are either the alleged proceeds of crime or the alleged instrumentalities of crime, and more recently, alleged terrorism. Instrumentalities of crime are property that was allegedly used to facilitate crime, for example cars...

 cases, based on drug laws, as in USA v. $124,700
USA v. $124,700
United States of America v. $124,700 in U.S. Currency, 05-3295 , was a decision of the United States Court of Appeals for the Eighth Circuit that was handed down on August 18, 2006....

 (2006).

England and Wales


History

Defendant was a legal term for a person prosecuted for misdemeanour. It was not applicable to a person prosecuted for felony
Felony
A felony is a serious crime in the common law countries. The term originates from English common law where felonies were originally crimes which involved the confiscation of a convicted person's land and goods; other crimes were called misdemeanors...

.

See also



  • Plaintiff
    Plaintiff
    A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...

     (civil)
  • Prosecution (criminal)
  • Lawsuit
    Lawsuit
    A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...

  • Legal defense fund
    Legal Defense Fund
    In the United States, a legal defense fund 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 up for individuals, organizations, or for a particular...