A defendant is the person, business, or organization that a legal case is filed against. In a civil lawsuit, a private party, called the plaintiff, is suing you, usually for money or to force you to do or stop doing something. In a criminal case, the government is accusing you of a crime, and your freedom may be on the line. What is a defendant’s situation really like? It depends almost entirely on which of those two tracks you’re on, because the rights you have, the deadlines you face, and the consequences of ignoring the case all change with it.
How Someone Becomes a Defendant
In civil court, you officially become a defendant when you’re served with two documents: a summons and a complaint. The summons tells you a case has been filed and explains when and how to respond. The complaint lays out the specific allegations and the legal basis for the claims.1Legal Information Institute. Federal Rules of Civil Procedure Rule 4 Service can happen in person, by mail, or through other methods authorized by court rules.
In a criminal case, you become a defendant when the government formally charges you. For felonies in the federal system, a prosecutor presents evidence to a grand jury, which decides whether to issue an indictment. For less serious offenses, a prosecutor can file a criminal complaint directly.2United States Department of Justice. Charging The charging document tells you what you’re accused of and sets the case in motion.
What a Civil Defendant Faces
Civil cases cover an enormous range of disputes: breach of contract, car accidents, unpaid debts, property damage, employment disputes, and countless others. Civil suits don’t carry jail time. What’s at stake is money, usually in the form of damages, or a court order requiring you to do something or stop doing something.
The plaintiff has to prove the case by a “preponderance of the evidence,” which essentially means showing it is more likely than not that their version of events is true. If the evidence tips even slightly in the plaintiff’s favor on an issue, the plaintiff wins on that issue. That’s a much lower bar than the one the government faces in a criminal prosecution.
One important point for anyone sued in civil court: you do not have a constitutional right to a free attorney. The Sixth Amendment right to appointed counsel applies only to criminal prosecutions.3Congress.gov. U.S. Constitution – Sixth Amendment If you can’t afford a lawyer, you’ll need to represent yourself, find pro bono help, or hire one on your own.
What a Criminal Defendant Faces
When the government charges you with a crime, a prosecutor handles the case on behalf of the state or federal government. The potential consequences are far more severe than in civil litigation. Depending on the offense, you could face fines, probation, community service, or prison time.
Because so much is at stake, the government carries a heavy burden. A prosecutor must prove guilt “beyond a reasonable doubt,” meaning the evidence must leave jurors firmly convinced the defendant committed the crime.4Constitution Annotated. Guilt Beyond a Reasonable Doubt If the prosecution falls short of that standard, the jury must find the defendant not guilty.
The Right to an Attorney
The Sixth Amendment guarantees anyone facing criminal prosecution the right to a lawyer. In 1963, the Supreme Court ruled in Gideon v. Wainwright that this right means the government must provide an attorney at no cost if the defendant can’t afford one.5United States Courts. Facts and Case Summary – Gideon v. Wainwright A public defender will be appointed if you qualify as indigent. Some jurisdictions charge a small administrative fee for that representation.
Presumption of Innocence and the Right to Silence
Every criminal defendant is presumed innocent until proven guilty. That presumption puts the entire burden on the prosecution. You don’t have to prove you’re innocent. The government has to prove you’re not.
The Fifth Amendment protects you from being forced to testify against yourself.6Congress.gov. U.S. Constitution – Fifth Amendment You can refuse to answer questions during an investigation, decline to take the witness stand at trial, and a jury isn’t supposed to hold that silence against you. The Fifth Amendment also protects against double jeopardy, so the government generally can’t try you twice for the same offense.
Trial and Confrontation Rights
The Sixth Amendment also guarantees the right to a speedy and public trial by an impartial jury, the right to be told what you’re charged with, the right to confront and cross-examine witnesses who testify against you, and the right to compel witnesses to testify on your behalf.7Legal Information Institute. U.S. Constitution – Sixth Amendment The confrontation right prevents the government from convicting someone based on accusations from witnesses the defendant never gets to question.
Protection Against Excessive Bail
The Eighth Amendment prohibits excessive bail, so a court can’t set bail so high that it functions as punishment before conviction.8Congress.gov. U.S. Constitution – Eighth Amendment Bail exists to make sure you show up for future court dates. When deciding whether to release you and under what conditions, a federal judge considers the nature of the charges, the weight of the evidence, your ties to the community, your criminal history, and whether releasing you would pose a danger to others.9Office of the Law Revision Counsel. 18 U.S. Code 3142 – Release or Detention of a Defendant Pending Trial Release conditions can range from a simple promise to appear to electronic monitoring, travel restrictions, curfews, or substance abuse treatment.
Civil vs. Criminal Defendants at a Glance
People often confuse the two tracks, especially because the same incident can lead to both. A drunk driver can face criminal charges from the government and a separate civil lawsuit from the person they injured. The two cases run on different rules.
- Who brings the case: a civil case is filed by a private plaintiff; a criminal case is brought by the government through a prosecutor.
- Burden of proof: a civil plaintiff wins by preponderance of the evidence; a prosecutor must prove guilt beyond a reasonable doubt.4Constitution Annotated. Guilt Beyond a Reasonable Doubt
- What’s at stake: civil defendants face monetary damages or court-ordered remedies; criminal defendants face fines, probation, or imprisonment.
- Right to an attorney: criminal defendants who can’t afford a lawyer get one appointed for free; civil defendants do not.3Congress.gov. U.S. Constitution – Sixth Amendment
- Terminology: the opposing party in a civil case is the plaintiff; in a criminal case it is the government, represented by a prosecutor.
An acquittal in criminal court doesn’t prevent a civil plaintiff from winning damages later, because the civil case uses a lower standard of proof. The O.J. Simpson case is the most famous example, but it happens routinely.
What a Defendant Has to Do Next
Responding to a Civil Complaint
If you’re served with a civil complaint in federal court, you have 21 days to respond.10Legal Information Institute. Federal Rules of Civil Procedure Rule 12 – Defenses and Objections State deadlines vary, but they’re always short. Missing the window can be devastating.
The most common response is an “answer.” You go through each allegation in the complaint and either admit it, deny it, or state that you don’t have enough information to know whether it’s true, which functions as a denial.11Legal Information Institute. Federal Rules of Civil Procedure – Rule 8 General Rules of Pleading Anything you fail to deny may be treated as admitted.
Before answering, you can file a motion to dismiss. Common grounds include arguing that the court lacks jurisdiction over you, that you were improperly served, that the plaintiff filed in the wrong court, or that the complaint doesn’t describe conduct the law treats as wrongful.10Legal Information Institute. Federal Rules of Civil Procedure Rule 12 – Defenses and Objections A successful motion can end the case before it really starts, and filing one pauses your answer deadline until the court rules.
Your answer is also where you raise affirmative defenses, which say that even if everything in the complaint is true, you still win because of additional facts. The federal rules list nearly twenty, including the statute of limitations, duress, fraud, payment, and assumption of risk.11Legal Information Institute. Federal Rules of Civil Procedure – Rule 8 General Rules of Pleading Forget one, and you risk waiving it. If you have your own claim against the plaintiff arising from the same events, you’re required to raise it as a compulsory counterclaim in your answer, or you may be barred from bringing it later.12Legal Information Institute. Federal Rules of Civil Procedure Rule 13 – Counterclaim and Crossclaim
Entering a Plea in a Criminal Case
A criminal defendant has three plea options: not guilty, guilty, or nolo contendere (no contest). Nolo contendere requires the court’s permission and results in a conviction just like a guilty plea, but it generally can’t be used as an admission of fault in a later civil lawsuit.13Legal Information Institute. Federal Rules of Criminal Procedure Rule 11 – Pleas If a defendant refuses to enter a plea, the court enters a not guilty plea automatically.
The vast majority of criminal cases never reach trial. The defendant and prosecutor negotiate a plea bargain, with the defendant agreeing to plead guilty, usually to a less serious charge or in exchange for a lighter sentencing recommendation.14United States Department of Justice. Plea Bargaining A defendant who accepts a plea gives up the right to trial, so this decision should never be made without a lawyer.
What Happens if a Defendant Ignores the Case
Doing nothing is one of the worst mistakes a defendant can make, and it’s surprisingly common.
If a civil defendant doesn’t respond within the deadline, the plaintiff can ask the court for a default judgment. The court treats the factual claims in the complaint as true and enters judgment against the defendant, often for the full amount requested.15GovInfo. Federal Rules of Civil Procedure Rule 55 – Default Judgment The defendant loses the chance to present evidence, raise defenses, or contest damages. Courts can set aside a default judgment, but only for good cause, and the longer you wait, the harder that gets.
A criminal defendant who fails to appear in court faces immediate and escalating consequences. The judge will issue a bench warrant, meaning any officer can take you into custody on sight. If you posted bail, you’ll forfeit it. Under federal law, failure to appear is itself a separate crime. If you were released while facing a felony punishable by five or more years in prison, the failure-to-appear charge alone carries up to five years of additional prison time, served consecutively with whatever sentence you receive on the original charge.16Office of the Law Revision Counsel. 18 USC 3146 – Penalty for Failure to Appear Even for misdemeanors, skipping court can add up to a year in jail.