Public defenders are the lawyers that are usually appointed when you can’t afford one. Most people know about the right to a public defender, as it is part of the Miranda rights that you hear all the time when people are arrested on TV shows and in movies. While you do have a right to have a lawyer appointed to you, there are caveats and exceptions when a public defender might not be available.
Public defenders can be denied to criminal defendants in NJ on the grounds that they can actually afford their own lawyer. The determination of whether you can get a public defender or not is made by the court on a case-by-case basis, with the court looking into your financial situation, your ability to pay, and the willingness ability of your friends and loved ones to cover the cost of your lawyer for you. Ultimately, being denied a public defender might be for the best, as using a private defense lawyer can often put you in a better position to fight the case against you anyway.
For a free case review, call the NJ criminal defense lawyers at the Law Offices of John J. Zarych right away at (609) 616-4956.
Who Qualifies for Public Defenders in NJ?
The U.S. Constitution’s 6th Amendment lays out the right to defense counsel – i.e., the “right to an attorney” included in the Miranda warnings. The Miranda warnings also lay out another right: the right to have a lawyer appointed to you if you cannot afford one. This right was declared in the U.S. Supreme Court case Gideon v. Wainwright in 1963, forcing states to provide lawyers to those who are unable to afford one. NJ uses the Office of the Public Defender (NJOPD) to supply people with public defenders, but NJ law creates some additional rules limiting who qualifies for a public defender (PD).
Indigence
First, public defenders are only available to defendants who cannot afford a lawyer. This determination will be discussed more in depth below, but suffice to say that proving you are unable to afford a lawyer is often harder than you might expect. Certainly, people with no jobs and no income will likely be able to get a PD appointed to them, but others might have trouble.
Being unable to afford a lawyer is called being “indigent.” If you can afford a lawyer, the court expects you to get one on your own.
Felony Offenses
Public defenders are available if you are charged with a felony-level offense. In NJ, we refer to these as “indictable crimes.” These are the kinds of crimes with a potential of over a year in jail, the right to a jury trial, and a serious need to have an NJ criminal defense lawyer on your side.
Misdemeanors with High Possibility of Jail Time
Most criminal charges are “disorderly persons offenses” or “petty disorderly persons offenses” instead. These are lower-level offenses considered “misdemeanors” in other states, and they are not even truly considered “crimes” in NJ. They have a max of 6 months in jail (30 days for petty offenses) and do not get you a right to a jury trial. As such, they also do not get you the right to a lawyer in most cases.
There is an exception, however, for disorderly persons offenses that are likely to result in jail time based on the specific charges and facts of your case.
Determining Indigence in NJ Criminal Cases
As mentioned, you qualify as “indigent” if you cannot afford a lawyer. N.J.S.A. § 2A-158A-2 lays out the definition of an “indigent defendant” to mean someone charged with an indictable offense who can’t afford “competent legal representation.” Factors to determine inability to afford a lawyer can be found in N.J.S.A. § 2A:158A-14.
This determination will always be fact-sensitive and must be carried out based on your specific financial situation and the facts of your own case. The main question in this determination will be whether you can afford to hire your own lawyer, and only if the court finds you cannot will get a PD appointed.
When looking at your finances, the statute tells the court to look at your income, your employment, your “liquid assets” (including home ownership), your ability to pay bail, and your ability to afford the other expenses involved with hiring a lawyer.
On top of these base factors, the law also includes three factors that should be considered “where appropriate.” This means they might not come up in every case, but the court can still rely on these factors to deny you a PD. First, the court is allowed to look into whether your family or friends could pay for your lawyer for you – or at least help you afford a lawyer. Second, the court is allowed to look at what it would actually cost to hire a lawyer, taking into account the potential legal issues the lawyer would have to deal with in your case. Third, the court can actually ask you to provide proof that you tried contacting at least three lawyers only to have all of them tell you that they would not take your case for the price you can pay them.
These factors can sometimes make it extremely difficult to get a public defender, even if you truly have low income or low assets and cannot reasonably afford one.
Should I Use a Public Defender if I Qualify for One in NJ?
Because it can be so difficult to qualify for a PD in the first place, you may have to retain a private defense lawyer for your case even if you are on the edge of being able to afford one. However, know that it is often a much better choice to get your own lawyer than to accept a PD.
Public defenders are often excellent attorneys, but they are often overloaded with cases and do not have the time and financial resources to spend individualized time with you discussing your charges and crafting a defense for your specific case. This can often result in what feels like rushed representation, something you are less likely to receive from experienced private defense counsel.
For Help with Your Criminal Case, Call Our NJ Defense Lawyers Today
Call (609) 616-4956 for a free case evaluation with our Camden, NJ criminal defense attorneys at the Law Offices of John J. Zarych today.
