The Sixth Amendment to the Constitution grants defendants the right to have a lawyer when facing criminal charges that could result in imprisonment. Defendants may hire a private attorney of their choosing, but for those who can’t afford to hire their own attorney, the court will appoint one. The government pays for appointed counsel—sometimes referred to as a public defender.
The determination of who’s able or unable to afford an attorney varies from jurisdiction to jurisdiction. Courts consider several factors in assessing a defendant’s ability to pay for an attorney. Employment status, assets, and income all come into play, as well as the cost of counsel in that jurisdiction. And just because a defendant has a job doesn’t mean the defendant can necessarily afford an attorney.
Courts will try to determine whether paying for a lawyer would cause the defendant substantial hardship. They will take into account the defendant’s financial obligations like rent, liabilities, and support obligations. But generally, neither a defendant’s non-liquid assets nor the assets of a defendant’s relatives should be considered.
Defendants have a right to a lawyer when facing criminal charges that could result in imprisonment. It doesn’t matter how long the imprisonment is or if it even happens at all, all that matters is that jail or prison time is possible. For instance, a defendant facing a misdemeanor charge with a maximum sentence of six months in jail has the right to a lawyer, even if the actual sentence turns out to be a fine and probation with no jail time.
Most traffic violations don’t warrant the appointment of counsel because the possible consequences are fines and losing your license, not jail time. Similarly, defendants in civil cases do not have the right to an attorney, except in very rare cases where the potential for loss of liberty exists, like in contempt cases.
Children or youth in juvenile delinquency proceedings also have the right to have a lawyer to represent them.
Defendants are entitled to have an attorney present at all “critical stages” of criminal proceedings.
Critical stages. A critical stage generally refers to any point of the criminal process where important rights of the defendant are at stake and not having an attorney could mean a substantially worse outcome for the defendant. Trial is clearly a critical stage, as well as most pretrial hearings and some post-trial proceedings. For instance, if a defendant could miss an opportunity to raise a defense or must make a decision that could later be used against him, this would likely qualify as a critical stage of the prosecution.
Interrogations and pretrial hearings. Generally, pretrial proceedings are considered critical stages, and defendants can request the appointment of a lawyer at the first court appearance. Defendants also have the right to an attorney during post-arrest police interrogations, if they ask for one. Asking for an attorney stops the interrogation, but it doesn’t necessarily mean an attorney will be appointed at that time. It just means the interrogation can’t resume until the defendant has an attorney present. Courts generally will not appoint an attorney unless a defendant faces formal criminal charges or an indictment.
Post-trial proceedings. A defendant is entitled to a lawyer for any post-trial hearing that is part of the same criminal prosecution, such as the sentencing hearing. Once the criminal prosecution concludes, a defendant’s right to appointed counsel becomes more limited. Defendants have a right to an attorney for the first appeal, as long as the appeal is not frivolous.
In general, a defendant is stuck with the attorney the court appoints. Courts are reluctant to grant motions for a change of counsel because they fear a defendant might be trying to frustrate the process, slow down proceedings, or delay a conviction. However, in extreme circumstances where a defendant can show solid evidence that the working relationship with the court-appointed attorney is so bad or even nonexistent, the court may grant a motion for substitution of attorney.
Some defendants—although not very many—choose to dismiss their attorneys and go it alone. This can be very risky as the criminal justice system is complicated and defendants might miss opportunities during the proceedings to help their case. Before you can represent yourself, a court must find you competent to do so—meaning the court believes you can understand the proceedings and adequately participate in your defense. In deciding competence, the court will consider the defendant’s age, level of education, English-speaking ability, as well as the seriousness of the crime charged. Even if a court finds you competent to represent yourself, it’s not usually the best idea.
When facing any kind of criminal charges, it’s important to consult an attorney in your area or ask the court to appoint an attorney, as soon as you can. Having an attorney advise you early on in your case can help ensure the best outcome for your particular situation.