Criminal Law

Working with a Public Defender or Court-Appointed Attorney

By Thomas Seigel, Attorney and Former Federal Prosecutor
Public defenders are often maligned as not being "real lawyers." Most of the time, public defenders or other appointed counsel provide exceptional service to their clients.

Defendants charged with a felony or a misdemeanor that could result in jail time are entitled to a free lawyer if they cannot afford one. In your first court appearance, the court will assign appointed counsel to represent you if you demonstrate financial hardship. (For more information on public defenders in general, see Public Defenders.) Appointed counsel typically meet with their new clients in the courthouse during their initial appearance, often called the arraignment.

Let’s look at how to get this new relationship started on the right foot. What can you do to help your public defender evaluate the case and come up with the best legal strategy? What questions should you ask? What actions should you avoid?

Getting Out on Bail

Your lawyer’s first priority will be to work with you to figure out whether you can post bail. Do not expect too much else in the initial meeting. Your appointed counsel will need as much information as you can provide regarding anyone who might be able to post bail or sign a bond to secure your release. You may be hoping that you will be released without bail (called being released “on your own recognizance,” or on “OR”), but in the majority of cases, the prosecutor will not consent to your release without some assurance you will return to court when required.

Working with Your Lawyer to Prepare the Case

Remember that public defenders have a lot more experience in court than you do. They have been trained to identify the key legal issues and the facts most likely to matter to a judge and a jury. You can help your attorney in many ways, but there are just as many ways that you can do damage to your own defense. Here are some “dos” and the “don’ts.”

Begin your relationship with an assumption of trust. Some clients believe that appointed lawyers cannot be trusted because they are paid with public funds. It’s a mistake to automatically suspect your public defender as someone not fully on your side. The source of the defenders’ salaries should give you no reason to question their commitment to defend you. Public defenders are normally passionate about the cause of criminal justice and would never betray their ethical obligations to clients.

Follow your lawyer’s lead during your discussions

Start off by letting your lawyer ask the questions. Many lawyers will begin with the police report, going over it and asking you to comment. Few lawyers will ask you an open-ended “What happened?”—not because they don’t want to hear from you, but because they are focused on defeating the prosecution’s case. Keeping the discussion centered on what the prosecution knows (and thinks it can prove at trial) is an efficient way to begin to craft a defense.

You can certainly ask your lawyer any questions you have. Of course, your defense counsel is obliged to explain the strategy for your case, and you should not be afraid to ask about this, either. But do not be surprised if what your attorney sees as important to your defense is different from what you think.

Answer truthfully

Answer your lawyer’s questions honestly. In order to come up with the best defense to the charges, your lawyer must understand what arguments might work and what facts make other arguments impossible. For example, if your lawyer asks you about witnesses to an incident and you omit the name of a friend who was there, that person could either be your corroborating witness or the prosecutor’s best witness against you. In either case, your public defender needs to know about this person.

Answering your lawyer’s questions truthfully doesn’t mean that you’re exposing yourself to additional criminal charges. All lawyers have a sworn duty to keep conversations with clients completely confidential. You can tell your lawyer about a dozen crimes you’ve committed, and your lawyer could never reveal them without your permission.

Consider plea bargain discussions evenly

Your lawyer is duty-bound to present all the ways in which your case might be resolved. In many situations, a plea bargain to lesser charges is an appropriate option. And sometimes, the prosecution offers reduced charges in exchange for cooperating with law enforcement. Even though you may be firmly opposed to either avenue, don’t get angry if your public defender raises them. You have the absolute right to go to trial and require the government to prove its case, even if your lawyer thinks a plea bargain would give you a better result. Whether to go to trial is your decision alone.

Know your limits

Much as you might like to, don’t try to investigate the case on your own. Public defenders have experience preparing cases for trial, and often have professional investigators on staff. These professionals know how to interview witnesses, and can testify at trial if needed (if the witness gives a version that differs from the initial interview). This means you should not call or write to anyone about the case unless your lawyer gives you clear instructions to do so.

If you talk to anyone else about the facts of your case, even if you’re not “investigating,” that person could become a witness against you, making your lawyer’s job even tougher. In addition, you do not want an awkward conversation to be seen as witness tampering by the prosecution. It’s normally much better to let the public defender contact potential witnesses.

Think twice about the wisdom of trying to do your own legal research. If you want to read cases or statutes to understand the case, you should feel free to do so, but it is normally a waste of time for you to go to the library or online to look up court decisions to help your lawyer. You might find cases that have been overruled or do not apply in your state. Leave the heavy legal lifting to your counsel.

Questions to ask Your Lawyer

  • What information do you need to help me post bail?
  • What personal records would be helpful to you?
  • Are there witness statements you would like me to review?
  • Can you give me copies of the court papers filed by the prosecution?

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