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Right to Counsel and the Public Defender

The Sixth Amendment right to a lawyer in a criminal case, including one paid for by the state if the defendant cannot afford one.

Informational only - this is not legal advice. These definitions explain general legal vocabulary in plain English. They are not advice about your situation, reading them creates no attorney-client relationship, and the law differs from state to state and changes over time. For advice you can rely on, speak to a lawyer licensed in your state.

What it means

A person facing criminal charges has a right to be represented by a lawyer, and if they cannot afford one the state must provide one. This is not a courtesy or a local policy; it is a constitutional requirement, established for state felony prosecutions in 1963 and extended since to any prosecution that actually results in imprisonment.

How the state discharges that obligation varies. Some jurisdictions run a public defender office staffed by salaried lawyers who do this work exclusively. Others appoint private lawyers from a panel and pay them at a set rate. Others contract with a firm. An appointed lawyer owes the same professional duties as a privately retained one - the same duty of loyalty, the same duty of confidentiality, the same obligation of competence - and is not an agent of the court or the prosecution, a misconception that costs defendants candour with the one person obliged to keep their confidence.

Eligibility is means-tested and the threshold is set locally. Some jurisdictions charge an application fee, or seek reimbursement of the cost of representation afterwards from those found able to pay. A defendant may also choose to represent themselves, which the Supreme Court has held is itself a constitutional right, though a court must satisfy itself that the choice is knowing and voluntary; it is rarely a good idea, and the rules of evidence and procedure are applied to a self-represented defendant much as they are to a lawyer.

The right is to effective assistance, not merely to the presence of a lawyer. A conviction can be challenged on the basis that counsel's performance fell below an objective standard of reasonableness and that the deficiency probably affected the outcome - both parts are required, and the standard is demanding. Separately, the right attaches to critical stages of the prosecution rather than to every moment of an investigation, which is why the point at which someone becomes entitled to a lawyer is itself sometimes litigated.

Where this comes from

The Sixth Amendment guarantees the assistance of counsel for the defence. Gideon v. Wainwright, 372 U.S. 335 (1963), applied it to state felony prosecutions; Argersinger v. Hamlin, 407 U.S. 25 (1972), and Alabama v. Shelton, 535 U.S. 654 (2002), extended it to misdemeanour cases resulting in actual or suspended imprisonment. The standard for ineffective assistance is Strickland v. Washington, 466 U.S. 668 (1984). The right to self-representation is Faretta v. California, 422 U.S. 806 (1975). Eligibility thresholds, application fees and recoupment of costs are set by state statute and local rule and differ substantially between jurisdictions.

When people hire a lawyer for this

Ask for a lawyer clearly and then stop talking about the case - the request has to be unambiguous to have its full effect, and continuing to explain after making it undoes much of the benefit. Public defenders are frequently very experienced in exactly the court and the charge in question, and caseload is a real constraint rather than a measure of commitment; a defendant who wants to be useful can help most by writing down the sequence of events while it is fresh, listing witnesses, and preserving messages and records before they are deleted. Anyone who was refused appointed counsel on means grounds but genuinely cannot pay should say so on the record and ask how the decision is reviewed, because the threshold and the review process are local.

Find a lawyer for this in your state

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Part of the LawyerLand plain-English legal glossary. Definitions are written from primary sources - statutes and court rules - and each entry states the authority it rests on, or says plainly when the doctrine is state law with no national rule.

If you cannot afford a lawyer, civil legal aid programmes provide free help with many of these problems: civil legal aid programmes by state.