Defendant

Learn all about what a defendant is and what its legal definition means, including what the defendant does in both civil and criminal legal cases.

After reading our list of FAQs below, you can feel confident that you know more than most people about the term defendant in court cases.

Who is the Defendant in Court?

In civil cases, the defendant refers to the individual or entity against whom legal action is taken or and in criminal cases, who is accused of committing a crime.

What is a Co-defendant?

A co-defendant is a person who has been accused of the same crime as another person. At the judge’s discretion, defendants can be tried together in a joint trial. The government often prosecutes co-defendants to save money.

Although co-defendants are in the same trial, they often have conflicting interests. That is why the law allows each to have their own attorney representing them, including different defense strategies, which can include testifying against each other.

What Happens if a Co-defendant Pleads Guilty?

If a co-defendant pleads guilty in a criminal case, it can significantly impact the other defendants involved. For example, a co-defendant can “flip” on the other defendant(s). That means they are pleading guilty as part of a plea agreement with the prosecuting attorney to testify against their co-defendant.

By making the deal to plead guilty and testify against the other defendant(s), they can get the charges against them dropped or, at a minimum, receive a lesser and more lenient sentence, i.e., probation instead of jail time.

What is a Nominal Defendant?

A nominal defendant is an individual or entity named as a defendant due to a technical connection to a lawsuit yet has no involvement in the case and is not expected to defend themselves.

Nominal defendants allow the court to subject them to court orders, although it will not be from a place of guilt. In a trust fund dispute, the nominal defendant is the trustee who may be ordered to disperse the trust funds to the party in the court order.

How Many Forms of Bail Are Available to a Defendant?

Typically, a judge will set one of four types of bail for a defendant at an arraignment: cash bail, surety bond, property bond, and release on recognizance.

1. Cash Bail: The defendant or someone on their behalf pays the full bail amount in cash to the court.
2. Surety Bond: A bail bondsman or agency posts the bail amount on behalf of the defendant, with the defendant or
   someone on their behalf paying a percentage as a fee upfront (typically 10% of the total bail amount). If the defendant “skips bail” by not appearing in court on the trial date, the bail will be forfeited, and the bail bondsman will absorb the financial loss minus the fee and any collateral.
3. Property Bond: The defendant uses their property, such as real estate, as collateral for the bail amount, which may be forfeited if they fail to appear.
4. Release on Recognizance (ROR): The defendant is released without paying bail, based on their promise to appear in court as required. This is known as “cashless bail.”

How Long Does a Defendant Have to Answer a Complaint?

Under federal law, the amount of time a defendant in a civil suit has to respond to a filed complaint is 21 days after being served in the United States.

If a defendant is the United States government, it has 60 or 90 days (depending on if it waived service) to respond after the plaintiff files a complaint.

Can a Defendant Demand a Jury Trial?

Yes, a defendant in a criminal case can demand a jury trial, provided that the charge is severe enough to warrant a jury trial. The Seventh Amendment of the U.S. Constitution grants this right.

Is a Defendant Released After a Mistrial?

No, not necessarily. A defendant will only be released after a mistrial if the prosecution chooses to drop charges, which is uncommon. More often, after a mistrial is declared due to the jury not reaching a verdict, the case will be retried with a new jury selected. In mistrials, the defendant is not acquitted nor found guilty of the charges brought against them.

What Happens to a Lawsuit When the Defendant Dies?

When a defendant dies during a civil lawsuit, the court will place a temporary hold on the suit to give the probate court time to appoint a personal representative for the deceased defendant’s estate. If a criminal defendant dies and there has yet to be a verdict, the case will be dropped.

What Happens if a Defendant is Found Incompetent?

If a defendant is found incompetent to stand trial, they may be hospitalized to restore competency. Once the defendant is restored to competency, they may stand trial. However, if the defendant cannot regain competency, they may be placed on probation or in a mental health facility.

Sometimes, the charges may be dismissed depending on the individual circumstances.

Can a Defendant File a Motion to Dismiss in Texas?

Yes, a defendant can file a motion to dismiss in Texas. A motion to dismiss is a legal document through which a defendant can ask a court to end the case without needing a trial. This type of motion is typically filed when the defendant believes the plaintiff has not provided enough evidence to prove their case.

In Texas, a defendant can file a motion to dismiss under the Texas Rules of Civil Procedure.

What Does Notice Of Dropping Party Defendant Mean?

Notice of dropping party defendant means that the plaintiff is no longer taking legal action against one of the defendants in a lawsuit.

It must be in writing and served in writing to the defendants in the suit. Notices of dropping parties are not the same as voluntary dismissals, as the plaintiff is not ending the lawsuit. Instead, they no longer plan to take legal action against the particular co-defendant in this particular lawsuit by filing the notice of dropping.

Plaintiffs may choose to drop a party for many reasons. One prominent reason is they no longer feel confident about holding the defendant accountable in the eyes of the law, which typically means they do not expect to recover a trial award from the dropped party.

Once the plaintiff drops the defendant from the suit, the court no longer has jurisdiction to include them in a judgment at the end. It is important to note a dropped party may be rejoined (added back as a defendant) by service of process.

Can the Prosecutor Call the Defendant as a Witness?

Yes, but it depends. The prosecutor can call the defendant as a witness in a criminal trial to cross-examine them only if the defendant already went on the stand to testify when being questioned by their defense attorney. Criminal defendants have the right not to testify at their trial.

Even when being questioned by the prosecutor, the defendant can refuse to answer any questions that might incriminate them, which is their right under the Fifth Amendment of the U.S. Constitution. Ultimately this is rare, as most defendants do not choose to testify on their own behalf at trial.

What to Wear to Court as a Defendant?

When appearing in court as a defendant, it is important to dress respectfully and professionally. Men should wear a shirt and tie, dress slacks, and dress shoes. Women can wear dresses, skirts, slacks, and blouses with dress shoes. Wearing clothes that are too casual, colorful, or revealing is not recommended.

For a favorable verdict, it is crucial the jury thinks a criminal defendant is taking the charges against them seriously, which can be influenced by the clothes the jury sees them wear.

Written by Aaron R. Winston
Last Updated: May 27, 2023 9:24am CDT