Public defenders are licensed attorneys who represent individuals who cannot afford to hire private criminal defense attorneys. Public defenders are usually highly knowledgeable, skilled, and experienced. They choose to work as public defenders to ensure your constitutional rights are upheld and to prevent you and others from being convicted of crimes you didn’t commit.
How a Public Defender Will Help You
A public defender will act as your criminal defense attorney throughout the criminal court process. To get started, your public defender will meet with you privately. Your lawyers next steps include:
1. Your lawyer will learn as much about the facts of the case as possible.
“Talking to the client is always foremost on the list of things to do when you take on a new case,” said James Bannister, a managing partner and private defense attorney at Bannister, Wyatt & Stalvey, LLC. Mr. Bannister was previously a member of the South Carolina Commission on Indigent Defense.
You have attorney-client privilege with your public defender. You can and should be honest with your lawyer about what happened and how you came to face criminal charges.
“Obtaining and reviewing the evidence against your client usually comes in at a close second,” according to Mr. Bannister. Before your lawyer can advise you on the best way to proceed, they need to know more about the strength of the prosecutor’s case. The lawyer will obtain and review the evidence available. They may find an independent investigation into the allegations is warranted.
Your public defender will talk with you about the strengths and weaknesses of the prosecutor’s case. They will talk with you about what the prosecutor must do to meet the burden of proof, which for a criminal case, is beyond a reasonable doubt. Your public defender might recommend a certain strategy. You have the final say, though, in what happens in your case.
2. Your lawyer will research the relevant criminal law and defenses.
Depending on the charges against you, the public defender might already be well-versed in the relevant areas of law. However, if you are facing rare charges or a unique combination of charges, your lawyer will thoroughly research this area of law and potentially effective defenses.
3. Your lawyer might file pretrial motions.
Some decisions can and should be made before trial. For example, your lawyer and the prosecutor may disagree on what evidence is admissible at trial. Your lawyer might file a motion asking the judge to rule certain evidence inadmissible based on the federal or state Rules of Evidence.
4. Your lawyer might try to get your case dismissed.
You and your public defender may agree to try and have the charges dropped or dismissed. Your lawyer might file a motion to dismiss and ask the judge to throw out the case due to insufficient evidence, a constitutional violation, or another reason.
5. Your lawyer will try to mitigate the potential consequences of a conviction.
Another option is to begin negotiations with the prosecutor. Your lawyer might try to have the charges reduced. This can be significant if your lawyer can get a felony charge reduced to a misdemeanor. Negotiations also may move toward a plea agreement. You and the prosecutor may agree that you will plead guilty in exchange for an agreed-upon sentence. Both reduced charges and plea bargains can help you lessen the consequences of a conviction.
6. Your lawyer will fight to obtain an innocent verdict at trial.
Your criminal case may go to trial. Under these circumstances, your public defender will prepare to represent you at trial and offer the strongest argument in support of an acquittal.
To prepare for trial, your lawyer will talk with you about whether you should testify or not. They will gather and prepare witnesses for answering questions under oath. They will prepare questions to ask the prosecution’s witnesses and prepare non-testimonial evidence they intend to admit into court during the trial, such as photos, videos, or physical objects.
Your Right to Counsel
The Sixth Amendment of the U.S. Constitution says:
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”
The last clause of the amendment gives you the right to have a defense attorney when you are facing criminal charges. However, it took a Supreme Court decision to create public defenders as they are known of today. “Recent Supreme Court cases have made it clear that, in any case where a defendant may be sentenced to incarceration, the Court must appoint a public defender for those who cannot afford counsel,” said Mr. Bannister.
A fundamental U.S. Supreme Court case is Gideon V. Wainwright. Clarence Earl Gideon was charged with breaking and entering with the intent to commit a crime in Florida. Gideon could not afford a lawyer and asked the court to appoint him one. The court declined. At the time, Florida only appointed attorneys for defendants charged with capital offenses.
Gideon represented himself and lost. After studying law while incarcerated, he filed a Petition for a Writ of Habeas Corpus to the Florida Supreme Court. The court denied his request. He then petitioned the U.S. Supreme Court, which agreed to hear his case.
The U.S. Supreme Court held that the Constitution required courts to provide counsel in criminal cases when defendants could not afford to retain attorneys themselves.
Eligibility for a Public Defender
If you are charged with a crime, you might have the option to work with a public defender. Eligibility for a public defender requires that you are an indigent defendant, which is someone who does not meet a certain income threshold.
Every jurisdiction has rules regarding who is considered indigent. “Currently, to qualify for a public defender in South Carolina, you must meet federal poverty guidelines,” said Mr. Bannister. A “household income above $12,000 makes you ineligible for a public defender. However, judges still have the discretion to appoint counsel if justice requires it.”
Judicial discretion is an important aspect of public defense. Mr. Bannister noted, “as a practical matter, this still leaves a number of individuals caught between being too poor to afford an attorney and making too much money to meet federal poverty guidelines.” If you do not qualify as indigent in your jurisdiction, you might still be able to petition the judge to assign you a public defender.
If you do not fully meet the requirements for a public defender but cannot afford to hire a private defense attorney, you may be allowed to work with the public defender’s office for a fee.
A Public Defender Might Not Be Free
Theoretically, public defenders are free. However, there may be fees associated with using a public defender that you should be aware of. Some states allow defendants to be charged a registration fee and allow judges to bill defendants for the public defender’s time, according to the American Civil Liberties Union of Southern California. According to the ACLU’s report, 45 states use some form of cost-recovery for public defenders, including the 27 states that charge upfront registration fees.