The Public Defender in a Criminal Case

Public defenders are paid by the government, but they work for you.

Many criminal defendants are legally indigent, meaning they can't afford to pay for an attorney. (The definition of indigency varies by state and, sometimes, city or county.) Under the Sixth Amendment to the U.S. Constitution, the state can't legally prosecute indigent defendants unless it provides them with an attorney.

To satisfy its constitutional requirement, many states have set up public defender offices. Typically, each local office has a chief public defender (who may be either elected or appointed) and a number of assistant public defenders. Public defenders are fully licensed lawyers whose sole job is to represent indigent defendants in criminal cases. Because they typically appear in the same courts on a daily basis, public defenders can gain a lot of experience in a short period of time.

The Public Defender Fights for You

The government pays for public defenders, just as it does for judges, prosecutors, police, and court personnel (although sometimes from different government-funding streams, like city, county, or state government). As a result, defendants sometimes fear that a public defender will be in the same camp, loyalty-wise, and won't be "on my side." Or, because public defenders work so closely with the judges and prosecutors, clients think they will pull punches in order to stay friendly with the group.

Rarely are such fears justified. The fact that the public defender might get a paycheck from the same source as the prosecutor and judge doesn't mean that the public defender needs to curry favor with them, because neither the judge nor the prosecutor makes hiring decisions about public defenders. As for wanting to be personally liked, a good public defender can maintain cordial relationships with judges and prosecutors while vigorously representing his clients’ interests. Besides, most private attorneys—not just public defenders—have regular contacts with judges and prosecutors.

Plus, having a public defender who knows the ins and outs of that specific court and the various criminal justice players can be advantageous in your representation.

How Many Public Defenders Will Represent Me?

Some public defense offices assign the same public defender to a defendant’s case from beginning to end (in legal lingo, this is known as "vertical representation"). In other public defense offices, the public defenders are specialized. One public defender may handle arraignments, another settlement conferences, another trials, and so forth ("horizontal representation"). With horizontal representation, a single defendant may be represented by a number of public defenders as a case moves from beginning to end.

The horizontal representation approach can sometimes result in defendants feeling lost in the shuffle, especially if there isn’t close communication between the different public defenders as the case moves from one phase to the next. In a good public defense office, each attorney makes clear and thorough notes in the client's file every time an attorney deals with the case or appears in court on behalf of the client. The next attorney to handle the case studies the file in order to be up to speed on how the case is progressing.

One advantage of horizontal representation is that the more serious the step, the more senior (and experienced) the attorney who handles it. For example, relatively new lawyers might be assigned to do bail motions and arraignments, but senior attorneys will take trials and sentencing hearings. That way, every defendant gets the advantage of experienced representation.

Can I Choose My Public Defender?

No. A defendant does not get to choose a public defender. In communities served by public defender offices, a judge typically appoints the public defense office to represent indigent defendants. The individual public defender who actually provides the representation is normally the one who happens to be assigned to the courtroom in which a defendant’s case is heard. Or, in large cities especially whose offices practice horizontal representation, the client gets the services of the public defender who is assigned to each stage of the case (arraignment, bail, preliminary hearings, motions, trials, and so on).

Requesting a Public Defender

Defendants who don't think they can pay for a private criminal defense attorney should ask the court to appoint an attorney. The defendant will need to provide information on their financial resources and obligations under oath. Based on that information, the court will decide if the defendant meets the financial qualifications for a public defender appointment.

This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.

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