Are all criminal defendants entitled to a court-appointed attorney?

No, not all criminal defendants are entitled to an attorney. A person has to face jail or prison time in order to qualify for an attorney. This means that if you receive a traffic ticket or some other citation or infraction (the terminology varies from state to state) that does have the possibility of leading to jail time, then the court does not have to appoint you an attorney. In basic terms, if you are charged with a felony or most misdemeanors, then you are entitled to an attorney. If you face only a fine, then you are not entitled to a court-appointed attorney.

How do you qualify for a court-appointed attorney?

You must be facing possible imprisonment for your alleged crime. But, you also must be indigent as defined by applicable state rules. In other words, the court must deem you to be financially unable to afford your own attorney. Most states define indecency in their rules of criminal procedure. For example, Florida Rule of Criminal Procedure

American citizens have the right to legal counsel, even if they cannot afford to pay for their own defense. This right is guaranteed under the Sixth Amendment (iStock).

American citizens have the right to legal counsel, even if they cannot afford to pay for their own defense. This right is guaranteed under the Sixth Amendment (iStock).

defines an indigent as "a person who is unable to pay for the services of an attorney, including costs of investigation, without substantial hardship to the person or the person's family." Some states, like Florida, also provide that individuals who are "partially indigent" can also receive a court-appointed attorney.

In many states the court will require a criminal defendant to take an oath and fill out an "affidavit of indigency" showing that he or she does not have the financial means to hire his or her own private attorney. The judge may ask the defendant questions to determine if he or she answered the questions truthfully in the affidavit.

Why does a criminal defendant need an attorney?

Justice Black expressed it best in Gideon v. Wainwright (1963; see LegalSpeak p. 154) when he wrote that an attorney in a criminal case is a necessity. A criminal defense attorney will be able to investigate a case, often hiring a trained investigator who is essential to establishing a proper defense or attacking the prosecution's theory of the case. A criminal defense attorney also knows the lawyers in the prosecutor's or district attorney's office and likely would be able to negotiate a much better plea agreement than a self-represented defendant. Also, criminal defense attorneys will know the law better and be able to make constitutional-based or statutory-based arguments that a layperson would simply now know. Simply stated, a criminal defense attorney knows the ins and outs of the criminal law far better than a layperson.

Can a person choose to waive or decline counsel and represent himself or herself?

Yes, a criminal defendant can decide to waive or decline counsel and represent himself in a criminal case. Federal law has provided for the right of self-representation since the Judiciary Act of 1789. The right of self-representation also applies to state court defendants. Most state constitutions explicitly provide for this right of self-representation. Even in those states that do not provide so in the state constitution, it is a right recognized either by a statute or in the common law (case law).

The U.S. Supreme Court recognized this right for a state-court defendant charged with grand auto theft in Farretta v. California (1975). The Court reasoned that historically the colonies had protected the right of self-representation and the Court reasoned that the Sixth Amendment right to counsel should be interpreted to have the right not to have unwanted counsel foisted upon a defendant.

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