Defendant

A defendant or defender (Δ in legal shorthand) is any party required to answer a plaintiff"s complaint in a civil lawsuit, or any party that has been formally charged or accused of violating a criminal statute. (Respondent is the parallel term used in a proceeding which is commenced by petition.)

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

Defendants in civil actions usually make their first court appearance voluntarily in response to a summons. But criminal defendants are often taken into custody by police and brought before a court under an arrest warrant. Historically, civil defendants could be taken into custody under a writ of capias ad respondendum and be forced to post bail before being released. But modern-day civil defendants are usually able to avoid most (if not all) court appearances if represented by a lawyer. Criminal defendants are usually obliged to post bail before being released from custody and 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.)

Most often and familiarly, defendants are persons: either natural persons (actual human beings) or legal persons (persona ficta) 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 (2006).

Defendants can set up an account to pay for litigation costs and legal expenses. These legal defense funds 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 for 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.

See also

• Plaintiff (civil)
• Prosecution (criminal)
• Lawsuit
• Legal defense fund