If you have ever watched a television crime or court drama, you know that one of the first things police tell a person when they’re arrested or taken into custody is that they have “a right to a lawyer” and that one will be appointed if they can’t afford to hire their own. This part of the Miranda Warning refers to the right to counsel, which is guaranteed in the Sixth Amendment to the U.S. Constitution.
The U.S. Supreme Court first clarified this important right in the 1963 case Gideon v. Wainwright. However, many people are still unclear on what the right to counsel entails. Are you always guaranteed a free lawyer? Is it better to pay for your own private defense lawyer? These are important questions, and there are several considerations you should keep in mind if you have been charged with a crime and are trying to decide whether to ask for a public defender or hire a private defense lawyer.
What Is a Public Defender?
A public defender is a real lawyer who has taken and passed the bar exam in the jurisdiction in which he or she practices law. There is no reason to think that these lawyers are people who “couldn’t make it” in private practice, or that they are any less skilled or qualified than a private criminal defense lawyer.
The Sixth Amendment guarantees that everyone has the right to defense counsel in a criminal matter (with some exceptions), but the Supreme Court also recognized that not everyone has the financial means to afford one. This is why the Court clarified the right to counsel in Gideon.
In some areas of the country, public defenders work full-time in their public defender roles. In other areas, including smaller municipalities, they may have their own private law practice and work part-time as a public defender. In either case, their fees for public defender work are paid by the taxpayers and not the defendant.
Depending on the jurisdiction, the criminal defendant may have to fill out a form detailing why he or she should receive a public defender. Courts typically require these types of forms to determine if the individual truly lacks the financial means to hire his or her own private criminal lawyer. This is referred to as “indigence,” which means someone without the means to provide the basic necessities of life, including food, clothing, and shelter. What constitutes indigence varies depending on the jurisdiction, but it is based on income and other means of financial support. However, there are typically exceptions in certain cases, including mentally ill defendants.
When Is a Defendant Entitled to a Public Defender?
Contrary to what some people believe, not every criminal defendant is automatically entitled to a public defender. The Sixth Amendment right to counsel does not kick in unless the defendant is charged with a felony or misdemeanor that is punishable by imprisonment. This means that certain offenses, such as a misdemeanor that is punishable only by a fine, does not include the right to a public defender.
The Pros and Cons of a Public Defender vs. a Criminal Defense Lawyer
If you’re trying to decide between asking for a public defender and hiring your own criminal defense lawyer, it’s important to consider the pros and cons for each.
Obviously, asking for a public defender involves no cost to the defendant. Your legal counsel is paid by the government, which means you incur no legal fees. By contrast, hiring your own criminal defense lawyer means you must pay legal fees.
Choosing Your Lawyer
One of the main drawbacks of using a public defender is that you don’t get to select your lawyer. When the court appoints your public defender, they don’t allow you to have any say in the lawyer chosen for you. Facing criminal charges is a stressful experience. When your life and freedom are on the line, you want to have a good rapport with your defense lawyer. More importantly, you want to make sure your defense lawyer truly believes in you and your defense.
Another serious downside of using a public defender is the tremendous case load most public defenders carry. According to a report published by the Brennan Center for Justice at New York University School of Law, “the average amount of time spent by a public defender at arraignment is often less than six minutes per case.” In most jurisdictions in the country, public defenders are in high demand, and they maintain a huge case load.
The report also states, “One set of workload recommendations for public defenders suggests 150 felony cases or 400 misdemeanor cases per year. Most jurisdictions across the country exceed these recommendations. In some jurisdictions, public defenders may have more than 300 cases at one time. With such high workloads, it is impossible to represent individual clients while adhering to even minimal standards of professionalism.”
By contrast, private defense lawyers get work based on their reputation. If they aren’t good at what they do, they won’t stay in business very long. For this reason, they typically only take on as many cases as they can handle, and they are selective about the types of cases they accept. Having a smaller, more reasonable workload means they have more time to devote to each client they represent.
Broden & Mickelsen
Broden & Mickelsen, LLP
2600 State St Dallas, Texas 75204
Main Phone: (214) 720-9552
Prior results cannot and do not guarantee or predict a similar outcome with respect to any future case. Recoveries always depend upon the facts and circumstances of each case, the injuries suffered, damages incurred, and the responsibility of those involved.