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.

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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 candor 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

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.

Worried about the cost? A lawyer can be hired for one part of a case only (limited-scope representation), may be paid from what a claim recovers (contingency fee), or may be free through a pro bono program or legal aid; a court can also waive its own filing fees.

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Related terms

Other entries in the same area of law, each written from the same primary sources.

• ArraignmentThe first court appearance in a criminal case, where the charges are read and a plea is entered.
• Bail and Pretrial ReleaseThe decision about whether someone stays in custody while their case is pending - which is about appearance and safety, not about guilt.
• Bench Warrant and Failure to AppearThe arrest warrant a judge issues from the bench when a defendant misses a court date or violates a court order - what it authorizes, the separate failure-to-appear charge and bond forfeiture that often follow, and how a person clears one by surrendering on their own terms rather than being picked up.
• Criminal RestitutionThe order, entered at sentencing, requiring a defendant to repay the victim's losses caused by the offense - what losses it covers, how it differs from a fine and from a civil judgment, the payment schedule and enforcement, and why it survives bankruptcy and the end of the sentence.
• Double JeopardyThe constitutional bar on being tried twice for the same offense after an acquittal or conviction, or punished twice for it - when jeopardy attaches, what counts as the "same offense", the mistrial and appeal exceptions, and why a state and the federal government may each prosecute the same act.
• Expungement and Record SealingCourt processes that erase or restrict access to a criminal record, available only in defined circumstances that vary by state.
• Felony and MisdemeanorThe basic division of criminal offenses by seriousness - which drives the procedure, the possible sentence, and the consequences that outlast it.
• Grand Jury and IndictmentA closed proceeding in which citizens decide whether there is enough evidence to charge someone - not whether they are guilty.
• Miranda RightsThe warning police must give before questioning someone in custody - and the reason a missing warning suppresses a statement rather than ending a case.
• Motion to Suppress (Exclusionary Rule)The pretrial request to keep evidence out of a criminal trial because it was obtained in violation of the Constitution - an unlawful search, an involuntary or un-warned confession, a suggestive identification - the hearing it triggers, the "fruit of the poisonous tree" rule, and the exceptions that let evidence in anyway.
• Plea BargainAn agreement resolving a criminal case by guilty plea, usually in exchange for reduced charges or a sentencing concession.
• Preliminary HearingAn early court hearing at which a judge decides whether there is enough evidence for a case to proceed - the defense's first real look at it.
• Pretrial Diversion and Deferred AdjudicationThe programs that let an eligible defendant avoid a conviction by completing conditions - treatment, classes, community service, restitution - after which the charge is dismissed; the difference between diversion before a plea and deferred adjudication after one, and what each does to the record.
• Probable CauseThe level of justification the Fourth Amendment requires before police may arrest someone or search a place - more than a hunch, and less than proof.
• Probation and Parole ViolationWhat happens when someone under supervision is said to have broken its conditions - a proceeding with fewer protections than the trial that preceded it.
• Right to a Speedy TrialThe constitutional guarantee that a criminal case be brought to trial without unreasonable delay, and the statutes in the federal system and most states that put a clock on it - what starts the clock, what stops it, why a defendant's own motions extend it, and the remedy of dismissal when it runs out.
• Search WarrantA judge's written authorization to search a specified place for specified things - and the exceptions that let police search without one are broad.
• Self-Defense and JustificationThe defense that a use of force was lawful because it was necessary to protect oneself or another from imminent unlawful force - the reasonableness and proportionality requirements, the duty-to-retreat and stand-your-ground split among the states, the castle doctrine, and who bears the burden once the defense is raised.
• Sentencing and EnhancementsHow a criminal sentence is decided after a plea or verdict - the statutory range, the guidelines or presumptive scheme the jurisdiction uses, the enhancements for prior convictions, weapons, victims and quantities that raise it, the presentence report, and the constitutional rule that any fact raising the maximum must be found by a jury.

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