Etymology & Origins: From Old French 'defendant,' present participle of 'defendre' (to defend), from Latin 'defendere' meaning 'to ward off' or 'to protect against.'
The defendant sits at the counsel table furthest from the jury box, accompanied by their attorney. In criminal cases, the defendant has the constitutional right to be present at all critical stages of the proceeding, to confront witnesses, and to testify or remain silent without adverse inference. The defendant may file motions to dismiss, assert affirmative defenses, or present their own case-in-chief after the plaintiff or prosecution rests. In criminal proceedings, the defendant need not present any evidence at all, as the burden never shifts from the prosecution.
Judge: "Will the defendant please rise for the reading of the verdict."
Attorney: "The defendant exercises their Fifth Amendment right and will not be testifying in this matter."
Judge: "The defendant's motion for judgment as a matter of law is denied."
Students sometimes assume the defendant must testify or present evidence. In criminal cases, the defendant has an absolute right to remain silent, and no adverse inference may be drawn from exercising that right.
Gideon v. Wainwright, 372 U.S. 335 (1963)
Held that the Sixth Amendment right to counsel applies to states, requiring appointment of counsel for indigent criminal defendants in felony cases.
In re Winship, 397 U.S. 358 (1970)
Established that due process requires proof beyond a reasonable doubt for every element of a crime.
Mathews v. Eldridge, 424 U.S. 319 (1976)
Established the balancing test for determining what process is due, directly impacting defendants' procedural rights.
| Criminal Defendant | Civil Defendant |
|---|---|
| Faces imprisonment, fines, or probation | Faces monetary damages or injunctions |
| Presumed innocent until proven guilty | No presumption of non-liability |
| Right to appointed counsel if indigent | No constitutional right to free counsel |
| Burden: beyond a reasonable doubt | Burden: preponderance of the evidence |
| Fifth Amendment right to silence | Can be compelled to testify |
| Cannot be retried after acquittal | Can face a new trial after certain reversals |
What is the difference between a defendant in a civil case versus a criminal case?
A civil defendant faces monetary liability with no right to appointed counsel. A criminal defendant faces imprisonment with constitutional protections including presumption of innocence, right to appointed counsel, and privilege against self-incrimination.
Can a defendant file claims against the plaintiff?
Yes, via counterclaim under FRCP 13. Compulsory counterclaims (same transaction) must be raised or are waived. Permissive counterclaims (unrelated) may be raised at option.
What happens if a defendant does not respond to a complaint?
If a defendant fails to respond within 21 days (or 60 if waiving service), the plaintiff may seek entry of default under Rule 55(a), followed by default judgment.
The plaintiff is the party who initiates a civil lawsuit by filing a complaint against the defendant...
The prosecutor is the government attorney responsible for presenting the case against the defendant ...
An acquittal is a legal judgment that a criminal defendant is not guilty of the charged offense. An ...
Defense counsel is the attorney who represents the defendant in civil or criminal proceedings. In cr...
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