The criminal justice process is complex and daunting. Learn more about criminal defense lawyers and how they work for defendants.
Recently arrested people should usually talk to a lawyer as soon as possible. Often, the most urgent priority is getting a lawyer to arrange a defendant's release and provide some information about what's to come in the days ahead.
If you have been represented by a criminal defense lawyer in the past, that is usually the lawyer to call—assuming you were satisfied with their services. If you have no previous experience with criminal defense lawyers, you can look to the following sources for a referral:
It's impossible to give a definitive answer. Attorneys set their own fees, which vary according to a number of factors:
A defendant charged with a misdemeanor should not be surprised by a legal fee in the neighborhood of $3,000-$5,000; an attorney may want $15,000-$25,000 in a felony case.
Most criminal defense attorneys want all or a substantial portion of the fee paid upfront. Contingency fees (where the lawyer gets paid only if they wins the case) are not allowed in criminal cases. To find a criminal defense attorney near you, check out Nolo's trusted Lawyer Directory.
The U.S. Constitution provides that you are entitled to representation by an attorney if the state is trying to deprive you of your liberty. This means that a court may be required to appoint a lawyer to represent you for free—or a fee you can afford—if the crime you are charged with carries a jail sentence.
According to the federal constitution, a defendant has a right to an attorney before being punished by imprisonment. Some courts have held that the right to counsel applies not only wherever imprisonment is imposed, but wherever it may be imposed. States are free to provide a right to counsel in other circumstances, too, such as when the defendant could be sentenced to a fine of a certain amount. (Faretta v. California, 422 U.S. 806 (1975).)
Because most criminal defendants are unable to afford their own attorneys, many states have public defender's offices. Public defenders are fully licensed lawyers whose sole job is to represent poor defendants in criminal cases. Because they appear daily in the same courts, public defenders gain a lot of experience in a short period of time. And because they work daily with the same cast of characters, they learn the personalities (and prejudices) of the judges, prosecutors, and local law enforcement officers—important information to know when assessing a case and conducting a trial.
In areas that don't have a public defender's office, the local government will often contract with private law firms to take cases for indigent defendants. Or, the courts will maintain a list of attorneys and appoint them on a rotating basis to represent people who can't afford to hire their own lawyers.
Normally, if you want a court to appoint a public defense attorney for you at government expense, you must:
Typically, your first opportunity to ask the court to appoint a lawyer for you will be at your first court appearance, normally called your arraignment or bail hearing. The judge will probably ask you whether you are represented by a lawyer. If you're not, the judge will then ask whether you want to apply for court-appointed counsel. If you say yes, some courts will appoint a lawyer right on the spot and finish your arraignment. Other courts will delay your case and appoint a lawyer only after reviewing and approving your financial circumstances.
Each state (or even county) makes its own rules as to who qualifies for a free lawyer. However, as a general rule, if the judge decides you're too poor to pay for an attorney and there is an actual risk of a jail or prison sentence, the court must appoint free legal counsel.
If you don't qualify for free help but can't afford the full cost of a private lawyer, you may still obtain the services of a court-appointed attorney. Most states provide for "partial indigency," which means that, at the conclusion of the case, the judge will require you to reimburse the state or county for a portion of the costs of representation.
The most critical piece of information in making a decision about self-representation is what the likely punishment will be if convicted. It is almost always wise to be represented by an attorney when jail time is possible. And remember, convictions for even seemingly minor offenses can carry hidden "downstream " costs, such as more severe punishment for a second conviction, increased insurance rates, loss or suspension of a professional license, and deportation of non-citizens. (To find a criminal defense attorney near you, check out Nolo's trusted Lawyer Directory.)
For more information, see Does Self-Representation in a Criminal Case Ever Make Sense?
It doesn't matter if you have a private criminal defense attorney or a public defender: Your attorney represents you—the criminal defendant—and has an ethical duty to zealously defend you, guilty or not. Defense lawyers must keep their clients informed about case-related developments, keep certain communications confidential, and give advice to help their clients make informed decisions. Your attorney is in charge of making tactical decisions (such as making motions and deciding what witnesses to call). But, as the criminal defendant, you maintain decision-making authority over essential matters, such as:
The prosecutor (who might be called a state, city, district, or assistant U.S. attorney) represents the government and files the criminal charges against the defendant. The role of the prosecutor is to protect the public. But prosecutors also have ethical duties to see justice done and not pursue cases on a whim.
In most criminal courts, the arraignment is where you first appear before a judge and enter a plea of guilty or not guilty to the offense charged. Assuming you enter a plea of not guilty (which almost every defendant does at this early stage), the following steps also happen at the arraignment:
Most people can, if necessary, handle this proceeding without an attorney. However, it's almost always better to have a lawyer, whether court-appointed or privately retained.
Judges rarely grant a defendant's request for a change of a public defender or another court-appointed lawyer. Disagreements between government-paid lawyers and defendants over strategic decisions are common and rarely are cause for a change of counsel. However, if in a serious case a schism between a lawyer and a defendant is so severe that a professional relationship is impossible, a judge may grant a defendant's request for new counsel. Incompetence of counsel is another possible basis for a change of counsel, but one that rarely arises.
On the other hand, defendants who hire their own attorneys have the right to fire them at any time, without court approval (subject to a few exceptions). A defendant doesn't have to show "good cause" or justify the firing. After firing a lawyer, a defendant can hire another lawyer or perhaps even represent herself. Of course, changing lawyers will probably be costly. In addition to paying the new lawyer, the defendant will have to pay the original lawyer whatever portion of the fee the original lawyer has earned.
Your right to change lawyers is limited by the prosecutor's right to keep cases moving on schedule. If you want to change attorneys on the eve of trial, for example, your new attorney is likely to agree to represent you only if the trial is delayed so the new attorney can prepare. The prosecutor may oppose the delay, possibly because witnesses won't be available to testify later on. In these circumstances, the judge is likely to deny your request to change lawyers.
For answers to your questions about every part of a criminal case, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara Berman (Nolo). If you are looking for a criminal defense attorney near you, check out Nolo's trusted Lawyer Directory.