What Is Indigent Defense?

In many countries around the world, a person who has been charged with a criminal offense has a right to representation by an attorney. In addition to the right to representation, many jurisdictions also afford the defendant the right to representation if he or she is unable to afford to hire an attorney. When a person is represented by an attorney in this manner, it is referred to as indigent defense. A defendant who receives an indigent defense is represented by a licensed attorney and should receive the same defense as a defendant who retains, and pays for, a private attorney.

Many nations throughout the world afford defendants the right to representation at the state's cost if the defendant is found to be indigent. In some countries, such as France and other European countries, the court will appoint a private attorney to represent the defendant at the state's cost if the defendant is found to be indigent. In other countries, such as the United States and Brazil, a separate agency exists that handles indigent defense. Attorneys who work for a separate agency are often referred to as public defenders. In both systems, the attorney appointed to represent the defendant is a licensed attorney.

In order to qualify for an indigent defense, the defendant must first request to be considered indigent. Courts will differ with regard to how they make a determination that a defendant is indigent; however, in most cases, the court will question the defendant, under oath, regarding his or her finances. The defendant may also be required to submit proof of his or her inability to afford the services of a private attorney. If the court is satisfied that the defendant cannot afford counsel, then the court will provide an indigent defense for the defendant.

The right to an indigent defense may extend to the appeals process or it may terminate at the conclusion of the trial in a criminal case. In the United States, a defendant is entitled to the services of a public defender through the initial appeal if he or she is convicted. The same attorney, however, will not represent the defendant at both the trial level and the appellate level. The reason for this is that appeals are a highly specialized area of the law and are better handled by attorneys who do nothing but prepare and argue appeals.

Although the concept of an indigent defense contemplates that the defendant will receive the same defense as one who pays for a private attorney, the public defender system receives a considerable amount of criticism. In reality, public defenders are often overworked and do not have the same resources as a private law firm. On the other hand, public defenders often have considerably more experience than many private criminal attorneys as they handle nothing but criminal cases, many of which actually go to trial.