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A defendant is someone who is accused of violating the law. To avoid legal sanction, they must defend themselves (hence the use of the term “defendant.”). Nevertheless, it is the other side, not the defendant, who must prove the case against the defendant. 

The law recognizes two main types of defendants–criminal defendants and civil defendants. You can be a criminal defendant and a civil defendant at the same time–in a DUI truck accident case, for example.

Differences Between a Criminal Defendant and a Civil Defendant

Differences Between a Criminal Defendant and a Civil Defendant

The criminal justice and civil compensation systems differ markedly because their purposes are different. The purpose of the criminal justice system is to punish criminals so that they will not re-offend and so that others will hesitate to follow in their footsteps. The purpose of the civil compensation system is to compensate people (primarily with money damages) who have suffered unjust losses.

The Opposing Party

In a criminal trial, the opposing party is the prosecutor. Cases are styled as the government vs. the individual defendant: Florida vs. McGuire, for example. 

In a civil case, the opposing party is the plaintiff. The plaintiff must be a “legal person”–an individual, a corporation, a non-profit organization, etc. Typically, a civil lawsuit involves two individuals facing off: Depp v. Heard, for example. 

Right to an Attorney

A criminal defendant has the right to an attorney if the crime for which they are charged carries the possibility of jail time. These attorneys are known as public defenders. Although many public defenders are dedicated and skilled, they are typically overworked, often handling more than a hundred cases at a time.

A civil defendant has no right to an attorney. If their insurance policy covers them for all or part of any judgment, however, the insurance company will probably provide them with a lawyer. It is in the insurance company’s interest to do so because if they lose the case, the insurance company must pay the judgment.

The Burden of Proof

The “burden of proof” refers to how much evidence the opposing party needs to prevail against the defendant. The burden of proof is different in a criminal case and a civil case.

Guilty Beyond a Reasonable Doubt

Guilty beyond a reasonable doubt is the burden of proof that applies to the prosecution in a criminal case. The weight of the prosecution’s evidence must be so overwhelming that no reasonable person could doubt it. This standard applies to each individual element of a criminal offense. Theoretically, this is a difficult standard to meet. Nevertheless, prosecutors routinely prevail using this standard. 

A Preponderance of the Evidence

 A “preponderance of the evidence” is the burden of proof in a civil trial. All the plaintiff needs to do to win is to produce enough evidence in favor of their claim to outweigh the evidence that favors the defendant.

The evidence must outweigh the defendant’s evidence for each element of the claim. In a motorcycle accident lawsuit, for example, the plaintiff must prevail on each of the four elements: duty, breach, causation, and damages. The weight of the evidence need not be overwhelming—even a 51% likelihood is sufficient. 


Remedies differ between criminal and civil offenses.

Criminal Penalties

In a successful criminal prosecution, penalties might include‌:

  • Jail or prison time, sometimes for life;
  • A fine;
  • Suspension or revocation of a professional license or a driver’s license;
  • Restitution paid to the victim;
  • Community service; 
  • Registration as a sex offender (for certain sex crimes);
  • Loss of the right to vote, bear arms, etc. for convicted felons; and/or
  • Capital punishment (for some cases of aggravated homicide).

A judge might impose other penalties as well—anger management classes after a domestic violence conviction, for example, or alcohol education classes for a DUI convict.

Civil Penalties

Civil penalties might include:

  • Compensatory damages (money damages);
  • Punitive damages (also money damages);
  • Restitution (return of any gain that the defendant enjoyed at the plaintiff’s expense, including windfall profits); 
  • Specific performance (re-titling real estate in the plaintiff’s name, for example, or the return of personal property); or
  • An injunction (stay 500 feet away from the plaintiff at all times, for example, or refrain from further defaming the plaintiff).

Most civil cases will not involve each type of compensation, but most will at least involve compensatory damages.

If You Are a Defendant, You Probably Need a Lawyer

If you are a defendant in small claims court, you might be able to get by without a lawyer. Even if you lose, the stakes are small. In a full-blown criminal action, however, the rules are complex and arcane. Without a lawyer, you will probably lose, and the consequences could be disastrous.

A civil trial is similarly complex, even though the stakes do not include possible incarceration. You might decide to settle your case out of court, of course. Keep in mind that representing yourself is not a good idea even in settlement negotiations because the opposing party is likely skilled at negotiating civil claims.