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Arrested: Do I Get an Attorney for Free?

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By Javier Lavagnino, Esq. on May 11, 2009 12:44 PM

Even though most people know that a defendant in a criminal case has the right to an attorney, there might be some misconceptions as to whether everyone has the right to a free attorney.

Yes, even though the Sixth Amendment of the Constitution guarantees the "assistance of counsel" for every invididual accused of a crime, it really doesn't say anything about whether the government has to pay for that attorney. Actually, historically, the law was understood to indicate simply that if you wanted an attorney and could shell out the dough for one, you had every right to do so. But as far as free help went, this was a concept developed over time by the court system itself.

Luckily for defendants in need, however, the rule has generally become that anyone who is too poor to hire a lawyer has to have one provided to them. Essentially someone can't go to jail for either a felony or a misdemeanor without having the assistance of counsel (unless they gave up that right). Pretty simple right? Well, not so fast, as you're probably already wondering, what's "too poor" and who gets to decide?

As you may have assumed, just saying "I can't afford an attorney" might very well not do the trick in getting a free attorney. The procedures and specific rules on who gets free representation actually varies by state, and may also vary at the local level. A person usually first gets to ask for a free attorney at their arraignment (or a bail hearing). Once they ask for an attorney and indicate they cannot afford one, a court will often undertake some sort of inquiry into the matter and may delay further proceedings until a determination is made. Key factors affecting a decision may include an individual's income (if any), as well as the severity and complexity of the crime they are charged with. Below are some more links to information and the law on the issue.

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