Defendant

Defendant

A defendant or defender (Δ in legal shorthand) is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who 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 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.[1]

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. 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 and forced to post 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, whereas a defendant in a criminal case (particularly a felony or indictment) 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 persons (actual human beings), or legal persons (persona ficta) under the legal fiction of treating organizations as persons; this is known as jurisdicition in personam. Alternatively, the defendant may be an object, which is known as jurisdiction in rem, 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 (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).

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.[2]

References

  1. ^ http://www.scotland-judiciary.org.uk/29/0/Glossary/a#P
  2. ^ O. Hood Phillips. A First Book of English Law. Sweet and Maxwell. Fourth Edition. 1960. Page 151.

See also


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