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If you are accused of a crime and
you face the possibility of going to jail, you'll want to look
for a good criminal defense lawyer.
What type of
lawyers are available for defendants who can't afford to pay
for one?
 The
U.S. Constitution provides that you are entitled to be
represented 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 for a fee you
can afford -- if the crime you are charged with carries a jail
sentence.
Because most criminal defendants are
unable to afford their own attorneys, many states have public
defender's offices. Public defenders (P.D.s) are fully licensed
lawyers whose sole job is to represent poor defendants in
criminal cases. Because they appear daily in the same courts,
P.D.s 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 court maintains a list of attorneys and
appoints them on a rotating basis to represent people who can't
afford to hire their own lawyers.
How
can I get a court to appoint a lawyer for me?
Normally,
if you want a court to appoint a lawyer for you at government
expense, you must:
ask the court to appoint a lawyer,
and provide details about your financial situation. 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 economic circumstances.
Each state (or even county) makes
its own rules as to who qualifies for a free lawyer. However, as
a general rule, if you are judged to be indigent, and there is
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.
Do
I need a lawyer at my arraignment?
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:
the judge sets a date for the next
procedural event in your case the judge considers any bail
requests that you or the prosecutor make the judge appoints a
lawyer for you, if appropriate, and the judge may ask you to
"waive time" -- that is, give up your right to have the trial or
other statutory proceedings occur within specified periods of
time. Most people can handle this proceeding without a lawyer.
However, if you can get the court to appoint a lawyer for you
without postponing the arraignment, or you are able to arrange
for private representation before your arraignment, it's always
better to have a lawyer.
How
can I find a private defense lawyer?
Recently
arrested people should usually talk to a lawyer as soon as
possible. The most urgent priority is often 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 his services. If you
have no previous experience with criminal defense lawyers, you
can look to the following sources for a referral:
Lawyers you know. Most lawyers do
civil (noncriminal) work, such as divorces, drafting wills,
filing bankruptcies, or representing people hurt in accidents.
If you know any attorneys that you trust, ask them to recommend
a criminal defense lawyer. (Some lawyers who do civil work can
also represent clients in criminal matters, at least for the
limited purpose of arranging for release from jail following an
arrest.) Family members or friends. Someone close to you may
know of a criminal defense lawyer or may have time to look for
one. Martindale-Hubbell. Martindale-Hubbell directories identify
lawyers according where they work and the type of law they
practice. The directories even rate lawyers for competency. All
law libraries have Martindale-Hubbell books; many general public
libraries have them as well. You can also find Martindale-Hubble
online at www.lawyers.com. Courthouses. You can visit a local
courthouse and sit through a few criminal hearings. If a
particular lawyer impresses you, ask for her card after the
hearing is over, and then call for an appointment.
What
is a private lawyer likely to cost?
It's
impossible to give a definitive answer. Attorneys set their own
fees, which vary according to a number of factors:
The complexity of a case. Most
attorneys charge more for felonies than for misdemeanors because
felonies carry greater penalties and are likely to involve more
work for the attorney. The attorney's experience. Generally,
less-experienced attorneys set lower fees than their
more-experienced colleagues. Geography. Just as gasoline and
butter cost more in some parts of the country than others, so do
lawyers. 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 up front.
Contingency fees, arrangements where the lawyer gets paid only
if he wins the case, are not allowed in criminal cases.
Should
I represent myself in a criminal case?
Defendants
choose to represent themselves for a variety of reasons:
Some defendants believe the likely
punishment is not severe enough to justify the expense. Some
defendants believe (often mistakenly) that an attorney who
represented them previously was ineffective and figure they can
do just as well on their own. Some defendants who are in jail
can gain privileges through self-representation, such as access
to the jail's law library. Also, not bound by lawyers' ethical
codes, self-represented defendants can delay proceedings and
sometimes wreak havoc on an already overloaded system by
repeatedly filing motions. Should you represent yourself? The
most obvious rule is that the less severe the charged crime, the
more sensible it is to represent yourself. Defendants charged
with minor traffic offenses should rarely hire an attorney,
while defendants charged with serious felonies should rarely be
without one. The most critical piece of information that
defendants should try to learn before deciding whether to hire
an attorney is what the punishment is likely to be if they are
convicted.
The most difficult decisions involve
misdemeanors such as drunk driving, possession of drugs, or
shoplifting. Hiring an attorney in these situations may be wise
when jail time and a fine are possibilities. Convictions may
also carry hidden costs, such as more severe punishment for a
second conviction or vastly increased insurance rates.
On the other hand, first-time
offenders charged with nonviolent crimes are not usually
sentenced to jail, and judges and prosecutors often offer
standard deals to all defendants, especially in drunk driving
cases, whether or not they are represented by an attorney.
Can
I represent myself and pay a lawyer to advise me as I go?
Yes.
If you're thinking about representing yourself, you might want
to seek out an defense attorney willing to serve as a "legal
coach." The goal of hiring a legal coach is to combine a
lawyer's knowledge with your own time. Because you pay for the
lawyer's help only occasionally, the cost of a legal coach can
be far less than turning the entire case over to a private
attorney.
Not all attorneys are willing to
serve as legal coaches. Some are worried about their liability
if they give wrong advice based on incomplete information;
others do not want to be involved with a case unless they are in
control of it. Thus, if you're considering going it alone and
you think you'll want a lawyer's help, you should try to line up
your legal coach before you make your final decision.
Can
I change lawyers if I'm unhappy with the one representing
me?
Requests
for a change of public defender or court-appointed lawyer are
rarely granted. A defendant would have to prove that the
representation is truly incompetent.
On the other hand, defendants who
hire their own attorneys have the right to fire them at any
time, without court approval. 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 she 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.
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