Getting arrested and going to court is everyone's nightmare. If you're facing criminal charges, the first thing you want is a good attorney to help you fight them. Whether you've been here before or this is your first time behind bars, you have a constitutional right to a lawyer.
Most people don't know how to request a court-appointed lawyer or what to do after saying they want one. This article will discuss what a public defender is, who qualifies to get one, and how you can have one appointed even if you can afford your own lawyer.
Know Your Rights: Requesting an Attorney
Anyone who watches TV shows has seen dour-faced cops reading criminals their Miranda rights. These rights are a pair of constitutional rights based on two civil rights cases. In 1963, the Court held in Gideon v. Wainwright that indigent defendants had a constitutional right to an attorney at all critical stages of their case. The Supreme Court ruled in Miranda v. Arizona (1966) that police must inform suspects they have a right not to incriminate themselves. This is your right to remain silent.
When To Invoke Your Miranda Rights
Using these rights is important for your case and your attorney later. Despite what you see on TV and what armchair attorneys tell you, police do not have to read suspects their Miranda rights at the moment of arrest. Police only need to read Miranda rights when questioning suspects about their crimes.
A suspect must state that they want to remain silent. Remaining silent without saying, “I do not want to answer questions," is not enough.
When To Invoke Your Right to an Attorney
You must have an attorney at all critical stages of an arrest and trial. This includes interrogation, arraignment, and some police procedures like lineups. However, again, unlike TV shows, you are not entitled to make a phone call to get a lawyer. If you want an attorney, asking for one means the police cannot continue any interrogations or procedures until you have legal representation.
Suspects must ask for an attorney themselves. The dramatic TV show interlude where an attorney bursts into the interrogation room and announces, “I'm the lawyer, and this interrogation is over!" does not happen in real life. A suspect must tell police they want a lawyer and either get an opportunity to contact one or tell the judge they need court-appointed counsel.
Indigent Defense Options
You'll also need to tell someone you need an attorney at your first court appearance, also known as your arraignment. This is the first time you stand before the judge and hear the formal charges against you. The judge will also ask if you have an attorney and if you want one appointed.
To qualify for court appointment of counsel, defendants must meet income-based requirements. The judge will ask the defendants if they have a job and about their other assets and expenses. Being unemployed may not be enough to qualify for a public defender or other court-appointed attorney. Courts have several alternatives for low-income defendants.
Public Defender's Office
The public defender's office handles most criminal cases when defendants cannot afford their own attorneys. Eligibility for a public defender depends on the defendant's household income and other assets. It is set by state law. For instance, in New Jersey, a defendant may make no more than 25% above the poverty level based on the number of people in the household.
Public defenders are usually good attorneys with extensive courtroom experience. They have longstanding relationships with prosecutors and judges in their jurisdictions. On the flip side, public defenders have large caseloads, small staffs, and pressure to keep their cases moving.
Alternate Public Defender
In large cities and counties, the public defender may share duties with private attorneys who have agreed to work with the courts. These lawyers are “alternate public defenders." Alternate defenders work with the public defender in conflict of interest cases, where the public defender represents another defendant in the same case. Alternate defenders also work overflow cases when indigent defendants need attorneys for arraignments and hearings.
Legal Aid and 'Partial Indigency'
It's always better to have an attorney than to appear “pro se," that is, to represent yourself. However, some legal issues do not need the services of an expensive private attorney. Not all criminal defendants need a high-priced lawyer. State and municipal courts recognize this, and many infractions and misdemeanors can be handled in a single day without an attorney.
Low-cost or no-cost legal aid services can help low-income defendants prepare for these cases. Even if you cannot qualify for a public defender, all you may need is legal advice. You may not need a private attorney to contest a traffic ticket or appear for a public intoxication citation.
The Sixth Amendment right to counsel means that the courts will not deprive you of representation, even if you don't meet the indigency requirements. Many states have a category known as “partial indigency." One example is Kansas' state statute Section 22-4504.
The judge in the case reviews the defendant's financial statement, the complexity of the case and probable costs, and the ability of the defendant to pay some or all the attorney fees. The defendant can continue with a court attorney and pay part of the costs or retain a private attorney.
“Partial indigency" allows low-income defendants to have legal services even though they don't fully qualify for free public defense services. The justice system ensures all defendants receive adequate legal representation, regardless of their ability to pay.
When You Have No Right To Counsel
Defendants in some types of cases do not have a right to an attorney. The courts have long held that defendants in civil cases do not have the right to an attorney, no matter what the stakes are. Civil attorneys in high-stakes cases often work on contingency, that is, a percentage of the award, so that low-income clients can have adequate representation.
Many state courts do not allow attorneys in small claims or traffic courts. Although a traffic ticket may be a criminal law case, the thinking is that these are intended to move quickly through the court and not involve the legal maneuvering of criminal defense lawyers.
Get Legal Help With Your Criminal Matter
If you need a criminal defense attorney for a case, you probably need one after you've already been arrested and charged. It's never too late to call someone near you and have them evaluate your case and let you know the best course of action.