A defendant is the party against whom a legal action is brought. In a criminal case, the defendant is the person accused of a crime. In a civil case, the defendant is the person or organization the plaintiff sues for a legal remedy, usually money damages or an order to do or stop doing something. The label describes a role in a case, not a finding of guilt or fault. A defendant is presumed to deny the allegations until the matter is resolved by a plea, a settlement, or a judgment.
Defendant in a Criminal Case
Criminal defendants face the government, which brings the charge in the name of the state or the United States. The prosecution carries the burden of proving every element of the offense beyond a reasonable doubt. That is the highest burden in the law, and it reflects the presumption of innocence that applies throughout the case.
The Sixth Amendment guarantees a criminal defendant the right to a lawyer, the right to a speedy and public trial, the right to an impartial jury, and the right to confront witnesses. The Fifth Amendment protects against compelled self-incrimination, and the Supreme Court's decision in Gideon v. Wainwright (1963) established that states must provide counsel to indigent defendants in felony cases. A defendant who cannot afford a lawyer may have one appointed at public expense.
Most criminal cases do not reach trial. The defendant may enter a plea at an arraignment, negotiate a plea agreement, or move to suppress evidence. Each of these steps is governed by court rules, including the Federal Rules of Criminal Procedure in federal court.
Defendant in a Civil Case
A civil case begins when the plaintiff files a complaint and serves it on the defendant. The defendant then has a set time, defined by the applicable rules, to respond. In federal court, Rule 12 of the Federal Rules of Civil Procedure governs the answer and the timing of certain defenses, and state rules follow a similar pattern.
In the answer, the defendant admits or denies each allegation and may raise affirmative defenses such as the statute of limitations, contributory negligence, or lack of jurisdiction. A defendant may also file a counterclaim against the plaintiff, a cross-claim against a co-defendant, or a third-party claim against someone else who may be liable.
The plaintiff usually bears the burden of proof in a civil case, and the standard is typically a preponderance of the evidence, meaning more likely than not. If the defendant ignores the case and fails to respond, the court may enter a default judgment for the plaintiff.
Other Names for the Parties
Court papers use several labels, and the same person can carry more than one depending on the stage of the case.
| Label | Meaning |
|---|---|
| Plaintiff | The party who starts a civil lawsuit |
| Defendant | The party being sued or charged |
| Petitioner | The party who files a petition, common in family and appellate matters |
| Respondent | The party who answers a petition |
| Appellant | The party appealing a lower court decision |
| Appellee | The party defending the appealed decision |
| Third-party defendant | A party brought in by a defendant who may share liability |
Criminal vs Civil Defendant
| Feature | Criminal defendant | Civil defendant |
|---|---|---|
| Who brings the case | The government | A private party or entity |
| Burden of proof | Beyond a reasonable doubt | Usually a preponderance of the evidence |
| Possible outcome | Fine, probation, prison, or other sentence | Money judgment, injunction, or specific performance |
| Right to appointed counsel | Yes, in most serious cases | Generally no, except in limited situations |
| Jury trial | Right in serious cases | Right in many cases, though often waived |
How a Case Moves Forward for a Defendant
In a civil case, the defendant's first step is usually to respond to the complaint within the time set by the rules, often 21 days after service in federal court under Rule 12. The defendant may answer, move to dismiss, or do both. After the pleadings close, the parties exchange information in discovery, and the defendant may take depositions, request documents, and serve written questions. The case can end in a settlement, a pretrial motion, or a trial.
In a criminal case, the defendant appears at an initial appearance, where the court may set conditions of release and appoint counsel. The next steps depend on whether the charge is a felony or a misdemeanor and on state procedure. The defendant may have a preliminary hearing, an arraignment, and pretrial motions before any trial or plea. Each stage carries deadlines, and missing one can limit the defendant's options.
When There Are Multiple Defendants
Lawsuits and prosecutions often involve more than one defendant. In civil cases, several defendants may be sued together when they are connected to the same events. Liability may be apportioned by fault, or, in some states and under some statutes, a defendant may be held jointly and severally liable, meaning one defendant can be responsible for the full judgment and then seek contribution from the others. The rules differ by state, so the allocation of fault is jurisdiction-specific.
In criminal cases, co-defendants may be tried together or separately. A court can order separate trials, called severance, when a joint trial would be unfair, for example when one defendant's statements would prejudice another.
What a Defendant Should Do
- Read the complaint or charging document carefully and note every deadline.
- Preserve documents, messages, and records that relate to the dispute.
- Avoid discussing the case with the other side or on social media.
- Respond on time; a missed deadline can lead to a default judgment or a waiver of defenses.
- Get advice about whether counsel is required or available at public expense.
Where to Find the Rules
Federal civil procedure is set out in the Federal Rules of Civil Procedure, published at uscourts.gov and summarized on Cornell's Legal Information Institute at law.cornell.edu. Federal criminal procedure is governed by the Federal Rules of Criminal Procedure. State court systems publish their own rules and self-help pages, and local rules can add deadlines that do not appear in the statewide rules.
Being named as a defendant carries serious consequences, and the procedures differ between criminal and civil cases and from state to state. This guide is general information only and is not legal advice. If you are a defendant in a real case, speak with a licensed attorney about your situation.