Pretrial Right to Counsel

9/30/2016

Every state constitution, in addition to the U.S. Constitution, guarantees the right to counsel for a person charged with a criminal offense. When Gideon v. Wainwright was decided by the U.S. Supreme Court in 1963, the right was established to have counsel appointed if a defendant was financially unable to pay for an attorney. Gideon and subsequent cases guarantee the right to appointed counsel to anyone charged with a felony or certain misdemeanors.

The Supreme Court has subsequently addressed when counsel should be provided, ruling that the right to counsel attaches at a defendant’s initial appearance.

The Court’s opinion in Rothgery v. Gillespie County states that:

 “Attachment occurs when the government has used the judicial machinery to signal a commitment to prosecute .... Once attachment occurs, the accused at least is entitled to the presence of appointed counsel during any ‘critical stage’ of the postattachment proceedings; what makes a stage critical is what shows the need for counsel's presence....”

“... [A] criminal defendant's initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.”

The Court also went on to say that counsel must be appointed within a reasonable amount of time after attachment to allow for adequate representation. This case law provides a baseline for providing indigent defendants with representation, but procedures for initial appearance and appointment of counsel vary by state.

In the first chart below you will find the exact language of each state constitutional provision establishing the right to counsel.  In the second chart you will find statutory guidance on implementing the right to counsel in each state. State law summarized in the second chart provides guidance on what happens at a defendant’s initial appearance. Frequently these laws require a court to determine pretrial release and conditions of release, to advise defendants of their right to counsel and their right to appointed counsel if they are unable to afford an attorney, and to appoint counsel if they find that a defendant is indigent and is charged with an offense that requires representation.

The National Center for State Courts has compiled additional information on how courts have interpreted these legal provisions in a Justice Brief titled Access to Counsel at Pretrial Release Proceedings.

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STATE CONSTITUTIONAL RIGHT TO COUNSEL

STATE

CITATION

 

Alabama

Const. Art. 1 §6

That in all criminal prosecutions, the accused has a right to be heard by himself and counsel, or either; to demand the nature and cause of the accusation; and to have a copy thereof; to be confronted by the witnesses against him; to have compulsory process for obtaining witnesses in his favor; to testify in all cases, in his own behalf, if he elects so to do; and, in all prosecutions by indictment, a speedy, public trial, by an impartial jury of the county or district in which the offense was committed; and he shall not be compelled to give evidence against himself, nor be deprived of life, liberty, or property, except by due process of law; but the legislature may, by a general law, provide for a change of venue at the instance of the defendant in all prosecutions by indictment, and such change of venue, on application of the defendant, may be heard and determined without the personal presence of the defendant so applying therefor; provided, that at the time of the application for the change of venue, the defendant is imprisoned in jail or some legal place of confinement.

Alaska

Const. Art. 1 §11

In all criminal prosecutions, the accused shall have the right to a speedy and public trial, by an impartial jury of twelve, except that the legislature may provide for a jury of not more than twelve nor less than six in courts not of record. The accused is entitled to be informed of the nature and cause of the accusation; to be released on bail, except for capital offenses when the proof is evident or the presumption great; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Arizona

Const. Art. 2 §24

In criminal prosecutions, the accused shall have the right to appear and defend in person, and by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to meet the witnesses against him face to face, to have compulsory process to compel the attendance of witnesses in his own behalf, to have a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed, and the right to appeal in all cases; and in no instance shall any accused person before final judgment be compelled to advance money or fees to secure the rights herein guaranteed.

Arkansas

Const. Art. 2 §10

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed; provided, that the venue may be changed to any other county of the judicial district in which the indictment is found, upon the application of the accused, in such manner as now is, or may be prescribed by law; and to be informed of the nature and cause of the accusation against him, and to have a copy thereof; and to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to be heard by himself and his counsel.

California

Const. Art. 1 §15

The defendant in a criminal cause has the right to a speedy public trial, to compel attendance of witnesses in the defendant's behalf, to have the assistance of counsel for the defendant's defense, to be personally present with counsel, and to be confronted with the witnesses against the defendant. The Legislature may provide for the deposition of a witness in the presence of the defendant and the defendant's counsel.

 

Persons may not twice be put in jeopardy for the same offense, be compelled in a criminal cause to be a witness against themselves, or be deprived of life, liberty, or property without due process of law.

California

Const. Art. 1 §14

Felonies shall be prosecuted as provided by law, either by indictment or, after examination and commitment by a magistrate, by information.

 

A person charged with a felony by complaint subscribed under penalty of perjury and on file in a court in the county where the felony is triable shall be taken without unnecessary delay before a magistrate of that court. The magistrate shall immediately give the defendant a copy of the complaint, inform the defendant of the defendant's right to counsel, allow the defendant a reasonable time to send for counsel, and on the defendant's request read the complaint to the defendant. On the defendant's request the magistrate shall require a peace officer to transmit within the county where the court is located a message to counsel named by defendant.

 

A person unable to understand English who is charged with a crime has a right to an interpreter throughout the proceedings.

Colorado

Const. Art. 2 §16

In criminal prosecutions the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.

Connecticut

Const. Art. 1 § 8

In all Criminal prosecutions, the accused shall have a right to be heard by himself and by counsel; to be informed of the nature and cause of the accusation; to be confronted by the witnesses against him; to have compulsory process to obtain witnesses in his behalf; to be released on bail upon sufficient security, except in capital offenses, where the proof is evident or the presumption great; and in all prosecutions by information, to a speedy, public trial by an impartial jury. No person shall be compelled to give evidence against himself, nor be deprived of life, liberty or property without due process of law, nor shall excessive bail be required nor excessive fines imposed. No person shall be held to answer for any crime, punishable by death or life imprisonment, unless upon probable cause shown at a hearing in accordance with procedures prescribed by law, except in the armed forces, or in the militia when in actual service in time of war or public danger.

District of Columbia

Const. B. of R. Art. 1 § 106

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him or her; to have compulsory process for obtaining witnesses in his or her favor, and to have the assistance of counsel for his or her defense.

Delaware

Const. Art. 1 § 7

In all criminal prosecutions, the accused hath a right to be heard by himself or herself and his or her counsel, to be plainly and fully informed of the nature and cause of the accusation against him or her, to meet the witnesses in their examination face to face, to have compulsory process in due time, on application by himself or herself, his or her friends or counsel, for obtaining witnesses in his or her favor, and a speedy and public trial by an impartial jury; he or she shall not be compelled to give evidence against himself or herself, nor shall he or she be deprived of life, liberty or property, unless by the judgment of his or her peers or by the law of the land.

Florida

Const. Art. 1 § 16

 (a) In all criminal prosecutions the accused shall, upon demand, be informed of the nature and cause of the accusation, and shall be furnished a copy of the charges, and shall have the right to have compulsory process for witnesses, to confront at trial adverse witnesses, to be heard in person, by counsel or both, and to have a speedy and public trial by impartial jury in the county where the crime was committed. If the county is not known, the indictment or information may charge venue in two or more counties conjunctively and proof that the crime was committed in that area shall be sufficient; but before pleading the accused may elect in which of those counties the trial will take place. Venue for prosecution of crimes committed beyond the boundaries of the state shall be fixed by law.

(b) Victims of crime or their lawful representatives, including the next of kin of homicide victims, are entitled to the right to be informed, to be present, and to be heard when relevant, at all crucial stages of criminal proceedings, to the extent that these rights do not interfere with the constitutional rights of the accused.

Georgia

Const. Art. 1 § 1

Every person charged with an offense against the laws of this state shall have the privilege and benefit of counsel; shall be furnished with a copy of the accusation or indictment and, on demand, with a list of the witnesses on whose testimony such charge is founded; shall have compulsory process to obtain the testimony of that person's own witnesses; and shall be confronted with the witnesses testifying against such person.

Hawaii

Const. Art. 1 § 14

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the district wherein the crime shall have been committed, which district shall have been previously ascertained by law, or of such other district to which the prosecution may be removed with the consent of the accused; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against the accused, provided that the legislature may provide by law for the inadmissibility of privileged confidential communications between an alleged crime victim and the alleged crime victim's physician, psychologist, counselor or licensed mental health professional; to have compulsory process for obtaining witnesses in the accused's favor; and to have the assistance of counsel for the accused's defense. Juries, where the crime charged is serious, shall consist of twelve persons. The State shall provide counsel for an indigent defendant charged with an offense punishable by imprisonment.

Idaho

Const. Art. 1 § 13

In all criminal prosecutions, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf, and to appear and defend in person and with counsel.

No person shall be twice put in jeopardy for the same offense; nor be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property without due process of law.

Illinois

Const. Art. 1 § 8

In criminal prosecutions, the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation and have a copy thereof; to be confronted with the witnesses against him or her and to have process to compel the attendance of witnesses in his or her behalf; and to have a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed.

Indiana

Const. Art. 1 § 13

(a) In all criminal prosecutions, the accused shall have the right to a public trial, by an impartial jury, in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor.

(b) Victims of crime, as defined by law, shall have the right to be treated with fairness, dignity, and respect throughout the criminal justice process; and, as defined by law, to be informed of and present during public hearings and to confer with the prosecution, to the extent that exercising these rights does not infringe upon the constitutional rights of the accused.

Iowa

Const. Art. 1 § 10

In all criminal prosecutions, and in cases involving the life, or liberty of an individual the accused shall have a right to a speedy and public trial by an impartial jury; to be informed of the accusation against him, to have a copy of the same when demanded; to be confronted with the witnesses against him; to have compulsory process for his witnesses; and, to have the assistance of counsel.

Kansas

Const. B. of R. § 10

In all prosecutions, the accused shall be allowed to appear and defend in person, or by counsel; to demand the nature and cause of the accusation against him; to meet the witness face to face, and to have compulsory process to compel the attendance of the witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed. No person shall be a witness against himself, or be twice put in jeopardy for the same offense.

Kentucky

Const. § 11

In all criminal prosecutions the accused has the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor. He cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land; and in prosecutions by indictment or information, he shall have a speedy public trial by an impartial jury of the vicinage; but the General Assembly may provide by a general law for a change of venue in such prosecutions for both the defendant and the Commonwealth, the change to be made to the most convenient county in which a fair trial can be obtained.

Louisiana

Const. Art. 1 § 13

When any person has been arrested or detained in connection with the investigation or commission of any offense, he shall be advised fully of the reason for his arrest or detention, his right to remain silent, his right against self incrimination, his right to the assistance of counsel and, if indigent, his right to court appointed counsel. In a criminal prosecution, an accused shall be informed of the nature and cause of the accusation against him. At each stage of the proceedings, every person is entitled to assistance of counsel of his choice, or appointed by the court if he is indigent and charged with an offense punishable by imprisonment. The legislature shall provide for a uniform system for securing and compensating qualified counsel for indigents.

Maine

Const. Art. 1 § 6

In all criminal prosecutions, the accused shall have a right to be heard by the accused and counsel to the accused, or either, at the election of the accused;

To demand the nature and cause of the accusation, and have a copy thereof;

To be confronted by the witnesses against the accused;

To have compulsory process for obtaining witnesses in favor of the accused;

To have a speedy, public and impartial trial, and, except in trials by martial law or impeachment, by a jury of the vicinity. The accused shall not be compelled to furnish or give evidence against himself or herself, nor be deprived of life, liberty, property or privileges, but by judgment of that person's peers or the law of the land.

Maryland

Dec. of R. art. 21

That in all criminal prosecutions, every man hath a right to be informed of the accusation against him; to have a copy of the Indictment, or charge, in due time (if required) to prepare for his defence; to be allowed counsel; to be confronted with the witnesses against him; to have process for his witnesses; to examine the witnesses for and against him on oath; and to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty.

Massachusetts

Const. Pt. 1, Art. 12

No subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself. And every subject shall have a right to produce all proofs, that may be favorable to him; to meet the witnesses against him face to face, and to be fully heard in his defence by himself, or his council, at his election. And no subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled, or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land. And the legislature shall not make any law, that shall subject any person to a capital or infamous punishment, excepting for the government of the army and navy, without trial by jury.

Michigan

Const. Art. 1 § 20

In every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury, which may consist of less than 12 jurors in prosecutions for misdemeanors punishable by imprisonment for not more than 1 year; to be informed of the nature of the accusation; to be confronted with the witnesses against him or her; to have compulsory process for obtaining witnesses in his or her favor; to have the assistance of counsel for his or her defense; to have an appeal as a matter of right, except as provided by law an appeal by an accused who pleads guilty or nolo contendere shall be by leave of the court; and as provided by law, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal.

Minnesota

Const. Art. 1 § 6

In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the county or district wherein the crime shall have been committed, which county or district shall have been previously ascertained by law. In all prosecutions of crimes defined by law as felonies, the accused has the right to a jury of 12 members. In all other criminal prosecutions, the legislature may provide for the number of jurors, provided that a jury have at least six members. The accused shall enjoy the right to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor and to have the assistance of counsel in his defense.

Mississippi

Const. Art. 3 § 26

In all criminal prosecutions the accused shall have a right to be heard by himself or counsel, or both, to demand the nature and cause of the accusation, to be confronted by the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in all prosecutions by indictment or information, a speedy and public trial by an impartial jury of the county where the offense was committed; and he shall not be compelled to give evidence against himself; but in prosecutions for rape, adultery, fornication, sodomy or crime against nature the court may, in its discretion, exclude from the courtroom all persons except such as are necessary in the conduct of the trial. Notwithstanding any other provisions of this Constitution, the Legislature may enact laws establishing a state grand jury with the authority to return indictments regardless of the county where the crime was committed. The subject matter jurisdiction of a state grand jury is limited to criminal violations of the Mississippi Uniform Controlled Substances Law or any other crime involving narcotics, dangerous drugs or controlled substances, or any crime arising out of or in connection with a violation of the Mississippi Uniform Controlled Substances Law or a crime involving narcotics, dangerous drugs or controlled substances if the crime occurs within more than one (1) circuit court district of the state or transpires or has significance in more than one (1) circuit court district of the state. The venue for the trial of indictments returned by a state grand jury shall be as prescribed by general law.

Missouri

Const. Art. 1 § 18(a)

That in criminal prosecutions the accused shall have the right to appear and defend, in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf; and a speedy public trial by an impartial jury of the county.

Montana

Const. Art. 2 § 24

In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel; to demand the nature and cause of the accusation; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed, subject to the right of the state to have a change of venue for any of the causes for which the defendant may obtain the same.

Nebraska

Const. Art. 1 § 11

In all criminal prosecutions the accused shall have the right to appear and defend in person or by counsel, to demand the nature and cause of accusation, and to have a copy thereof; to meet the witnesses against him face to face; to have process to compel the attendance of witnesses in his behalf; and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.

Nevada

Const. Art. 1 § 8

1. No person shall be tried for a capital or other infamous crime (except in cases of impeachment, and in cases of the militia when in actual service and the land and naval forces in time of war, or which this state may keep, with the consent of congress, in time of peace, and in cases of petit larceny, under the regulation of the legislature) except on presentment or indictment of the grand jury, or upon information duly filed by a district attorney, or attorney-general of the state, and in any trial, in any court whatever, the party accused shall be allowed to appear and defend in person, and with counsel, as in civil actions. No person shall be subject to be twice put in jeopardy for the same offense; nor shall he be compelled, in any criminal case, to be a witness against himself.

2. The legislature shall provide by law for the rights of victims of crime, personally or through a representative, to be:

(a) Informed, upon written request, of the status or disposition of a criminal proceeding at any stage of the proceeding;

(b) Present at all public hearings involving the critical stages of a criminal proceeding; and

(c) Heard at all proceedings for the sentencing or release of a convicted person after trial.

3. Except as otherwise provided in subsection 4, no person may maintain an action against the state or any public officer or employee for damages or injunctive, declaratory or other legal or equitable relief on behalf of a victim of a crime as a result of a violation of any statute enacted by the legislature pursuant to subsection 2. No such violation authorizes setting aside a conviction or sentence or continuing or postponing a criminal proceeding.

4. A person may maintain an action to compel a public officer or employee to carry out any duty required by the legislature pursuant to subsection 2.

5. No person shall be deprived of life, liberty, or property, without due process of law.

6. Private property shall not be taken for public use without just compensation having been first made, or secured, except in cases of war, riot, fire, or great public peril, in which case compensation shall be afterward made.

New Hampshire

Const. Pt. 1, Art. 15

No subject shall be held to answer for any crime, or offense, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse or furnish evidence against himself. Every subject shall have a right to produce all proofs that may be favorable to himself; to meet the witnesses against him face to face, and to be fully heard in his defense, by himself, and counsel. No subject shall be arrested, imprisoned, despoiled, or deprived of his property, immunities, or privileges, put out of the protection of the law, exiled or deprived of his life, liberty, or estate, but by the judgment of his peers, or the law of the land; provided that, in any proceeding to commit a person acquitted of a criminal charge by reason of insanity, due process shall require that clear and convincing evidence that the person is potentially dangerous to himself or to others and that the person suffers from a mental disorder must be established. Every person held to answer in any crime or offense punishable by deprivation of liberty shall have the right to counsel at the expense of the state if need is shown; this right he is at liberty to waive, but only after the matter has been thoroughly explained by the court.

New Jersey

Const. Art. 1 § 10

In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel in his defense.

New Mexico

Const. Art. 2 § 14

No person shall be held to answer for a capital, felonious or infamous crime unless on a presentment or indictment of a grand jury or information filed by a district attorney or attorney general or their deputies, except in cases arising in the militia when in actual service in time of war or public danger. No person shall be so held on information without having had a preliminary examination before an examining magistrate, or having waived such preliminary examination.

A grand jury shall be composed of such number, not less than twelve, as may be prescribed by law. Citizens only, residing in the county for which a grand jury may be convened and qualified as prescribed by law, may serve on a grand jury. Concurrence necessary for the finding of an indictment by a grand jury shall be prescribed by law; provided, such concurrence shall never be by less than a majority of those who compose a grand jury, and, provided, at least eight must concur in finding an indictment when a grand jury is composed of twelve in number. Until otherwise prescribed by law a grand jury shall be composed of twelve in number of which eight must concur in finding an indictment. A grand jury shall be convened upon order of a judge of a court empowered to try and determine cases of capital, felonious or infamous crimes at such times as to him shall be deemed necessary, or a grand jury shall be ordered to convene by such judge upon the filing of a petition therefor signed by not less than the greater of two hundred registered voters or two percent of the registered voters of the county, or a grand jury may be convened in any additional manner as may be prescribed by law.

In all criminal prosecutions, the accused shall have the right to appear and defend himself in person, and by counsel; to demand the nature and cause of the accusation; to be confronted with the witnesses against him; to have the charge and testimony interpreted to him in a language that he understands; to have compulsory process to compel the attendance of necessary witnesses in his behalf, and a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.

New York

Const. Art. 1 § 6

No person shall be held to answer for a capital or otherwise infamous crime (except in cases of impeachment, and in cases of militia when in actual service, and the land, air and naval forces in time of war, or which this state may keep with the consent of congress in time of peace, and in cases of petit larceny under the regulation of the legislature), unless on indictment of a grand jury, except that a person held for the action of a grand jury upon a charge for such an offense, other than one punishable by death or life imprisonment, with the consent of the district attorney, may waive indictment by a grand jury and consent to be prosecuted on an information filed by the district attorney; such waiver shall be evidenced by written instrument signed by the defendant in open court in the presence of his or her counsel. In any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil actions and shall be informed of the nature and cause of the accusation and be confronted with the witnesses against him or her. No person shall be subject to be twice put in jeopardy for the same offense; nor shall he or she be compelled in any criminal case to be a witness against himself or herself, providing, that any public officer who, upon being called before a grand jury to testify concerning the conduct of his or her present office or of any public office held by him or her within five years prior to such grand jury call to testify, or the performance of his or her official duties in any such present or prior offices, refuses to sign a waiver of immunity against subsequent criminal prosecution, or to answer any relevant question concerning such matters before such grand jury, shall by virtue of such refusal, be disqualified from holding any other public office or public employment for a period of five years from the date of such refusal to sign a waiver of immunity against subsequent prosecution, or to answer any relevant question concerning such matters before such grand jury, and shall be removed from his or her present office by the appropriate authority or shall forfeit his or her present office at the suit of the attorney-general.

The power of grand juries to inquire into the wilful misconduct in office of public officers, and to find indictments or to direct the filing of informations in connection with such inquiries, shall never be suspended or impaired by law. No person shall be deprived of life, liberty or property without due process of law.

North Carolina

Const. Art. 1 § 23

In all criminal prosecutions, every person charged with crime has the right to be informed of the accusation and to confront the accusers and witnesses with other testimony, and to have counsel for defense, and not be compelled to give self-incriminating evidence, or to pay costs, jail fees, or necessary witness fees of the defense, unless found guilty.

North Dakota

Const. Art. 1 § 12

In criminal prosecutions in any court whatever, the party accused shall have the right to a speedy and public trial; to have the process of the court to compel the attendance of witnesses in his behalf; and to appear and defend in person and with counsel. No person shall be twice put in jeopardy for the same offense, nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty or property without due process of law.

Ohio

Const. Art. 1 § 10

Except in cases of impeachment, cases arising in the army and navy, or in the militia when in actual service in time of war or public danger, and cases involving offenses for which the penalty provided is less than imprisonment in the penitentiary, no person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury; and the number of persons necessary to constitute such grand jury and the number thereof necessary to concur in finding such indictment shall be determined by law. In any trial, in any court, the party accused shall be allowed to appear and defend in person and with counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process to procure the attendance of witnesses in his behalf, and a speedy public trial by an impartial jury of the county in which the offense is alleged to have been committed; but provision may be made by law for the taking of the deposition by the accused or by the state, to be used for or against the accused, of any witness whose attendance can not be had at the trial, always securing to the accused means and the opportunity to be present in person and with counsel at the taking of such deposition, and to examine the witness face to face as fully and in the same manner as if in court. No person shall be compelled, in any criminal case, to be a witness against himself; but his failure to testify may be considered by the court and jury and may be the subject of comment by counsel. No person shall be twice put in jeopardy for the same offense.

Oklahoma

Const. Art. 2 § 20

In all criminal prosecutions the accused shall have the right to a speedy and public trial by an impartial jury of the county in which the crime shall have been committed or, where uncertainty exists as to the county in which the crime was committed, the accused may be tried in any county in which the evidence indicates the crime might have been committed. Provided, that the venue may be changed to some other county of the state, on the application of the accused, in such manner as may be prescribed by law. He shall be informed of the nature and cause of the accusation against him and have a copy thereof, and be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his behalf. He shall have the right to be heard by himself and counsel; and in capital cases, at least two days before the case is called for trial, he shall be furnished with a list of the witnesses that will be called in chief, to prove the allegations of the indictment or information, together with their postoffice addresses.

Oregon

Const. Art. 1 § 11

In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor; provided, however, that any accused person, in other than capital cases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone, such election to be in writing; provided, however, that in the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise; provided further, that the existing laws and constitutional provisions relative to criminal prosecutions shall be continued and remain in effect as to all prosecutions for crimes committed before the taking effect of this amendment.

Pennsylvania

Const. Art. 1 § 9

In all criminal prosecutions the accused hath a right to be heard by himself and his counsel, to demand the nature and cause of the accusation against him, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and, in prosecutions by indictment or information, a speedy public trial by an impartial jury of the vicinage; he cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or the law of the land. The use of a suppressed voluntary admission or voluntary confession to impeach the credibility of a person may be permitted and shall not be construed as compelling a person to give evidence against himself.

Rhode Island

Const. Art. 1 § 10

In all criminal prosecutions, accused persons shall enjoy the right to a speedy and public trial, by an impartial jury; to be informed of the nature and cause of the accusation, to be confronted with the witnesses against them, to have compulsory process for obtaining them in their favor, to have the assistance of counsel in their defense, and shall be at liberty to speak for themselves; nor shall they be deprived of life, liberty, or property, unless by the judgment of their peers, or the law of the land.

South Carolina

Const. Art. 1 § 14

The right of trial by jury shall be preserved inviolate. Any person charged with an offense shall enjoy the right to a speedy and public trial by an impartial jury; to be fully informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to be fully heard in his defense by himself or by his counsel or by both.

South Dakota

Const. Art. 6 § 7

In all criminal prosecutions the accused shall have the right to defend in person and by counsel; to demand the nature and cause of the accusation against him; to have a copy thereof; to meet the witnesses against him face to face; to have compulsory process served for obtaining witnesses in his behalf, and to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.

Tennessee

Const. Art. 1 § 9

That in all criminal prosecutions, the accused hath the right to be heard by himself and his counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor, and in prosecutions by indictment or presentment, a speedy public trial, by an impartial jury of the County in which the crime shall have been committed, and shall not be compelled to give evidence against himself.

Texas

Const. Art. 1 § 10

In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the accusation against him, and to have a copy thereof. He shall not be compelled to give evidence against himself, and shall have the right of being heard by himself or counsel, or both, shall be confronted by the witnesses against him and shall have compulsory process for obtaining witnesses in his favor, except that when the witness resides out of the State and the offense charged is a violation of any of the anti-trust laws of this State, the defendant and the State shall have the right to produce and have the evidence admitted by deposition, under such rules and laws as the Legislature may hereafter provide; and no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger.

Utah

Const. Art. 1 § 12

In criminal prosecutions the accused shall have the right to appear and defend in person and by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to be confronted by the witnesses against him, to have compulsory process to compel the attendance of witnesses in his own behalf, to have a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed, and the right to appeal in all cases. In no instance shall any accused person, before final judgment, be compelled to advance money or fees to secure the rights herein guaranteed. The accused shall not be compelled to give evidence against himself; a wife shall not be compelled to testify against her husband, nor a husband against his wife, nor shall any person be twice put in jeopardy for the same offense.

Where the defendant is otherwise entitled to a preliminary examination, the function of that examination is limited to determining whether probable cause exists unless otherwise provided by statute. Nothing in this constitution shall preclude the use of reliable hearsay evidence as defined by statute or rule in whole or in part at any preliminary examination to determine probable cause or at any pretrial proceeding with respect to release of the defendant if appropriate discovery is allowed as defined by statute or rule.

Vermont

Const. Ch. 1 Art. 1

That in all prosecutions for criminal offenses, a person hath a right to be heard by oneself and by counsel; to demand the cause and nature of the accusation; to be confronted with the witnesses; to call for evidence in the person's favor, and a speedy public trial by an impartial jury of the country; without the unanimous consent of which jury, the person cannot be found guilty; nor can a person be compelled to give evidence against oneself; nor can any person be justly deprived of liberty, except by the laws of the land, or the judgment of the person's peers; provided, nevertheless, in criminal prosecutions for offenses not punishable by death, the accused, with the consent of the prosecuting officer entered of record, may in open court or by a writing signed by the accused and filed with the court, waive the right to a jury trial and submit the issue of the accused's guilt to the determination and judgment of the court without a jury.

Virginia

Const. Art. 1 § 8

That in criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, and to call for evidence in his favor, and he shall enjoy the right to a speedy and public trial, by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty. He shall not be deprived of life or liberty, except by the law of the land or the judgment of his peers, nor be compelled in any criminal proceeding to give evidence against himself, nor be put twice in jeopardy for the same offense.

Laws may be enacted providing for the trial of offenses not felonious by a court not of record without a jury, preserving the right of the accused to an appeal to and a trial by jury in some court of record having original criminal jurisdiction. Laws may also provide for juries consisting of less than twelve, but not less than five, for the trial of offenses not felonious, and may classify such cases, and prescribe the number of jurors for each class.

In criminal cases, the accused may plead guilty. If the accused plead not guilty, he may, with his consent and the concurrence of the Commonwealth's attorney and of the court entered of record, be tried by a smaller number of jurors, or waive a jury. In case of such waiver or plea of guilty, the court shall try the case.

The provisions of this section shall be self-executing.

Washington

Const. Art. 1 § 22

In criminal prosecutions the accused shall have the right to appear and defend in person, or by counsel, to demand the nature and cause of the accusation against him, to have a copy thereof, to testify in his own behalf, to meet the witnesses against him face to face, to have compulsory process to compel the attendance of witnesses in his own behalf, to have a speedy public trial by an impartial jury of the county in which the offense is charged to have been committed and the right to appeal in all cases: Provided, The route traversed by any railway coach, train or public conveyance, and the water traversed by any boat shall be criminal districts; and the jurisdiction of all public offenses committed on any such railway car, coach, train, boat or other public conveyance, or at any station or depot upon such route, shall be in any county through which the said car, coach, train, boat or other public conveyance may pass during the trip or voyage, or in which the trip or voyage may begin or terminate. In no instance shall any accused person before final judgment be compelled to advance money or fees to secure the rights herein guaranteed.

West Virginia

Const. Art. 3 § 14

Trials of crimes, and of misdemeanors, unless herein otherwise provided, shall be by a jury of twelve men, public, without unreasonable delay, and in the county where the alleged offence was committed, unless upon petition of the accused, and for good cause shown, it is removed to some other county. In all such trials, the accused shall be fully and plainly informed of the character and cause of the accusation, and be confronted with the witnesses against him, and shall have the assistance of counsel, and a reasonable time to prepare for his defence; and there shall be awarded to him compulsory process for obtaining witnesses in his favor.

Wisconsin

Const. Art. 1 § 7

In all criminal prosecutions the accused shall enjoy the right to be heard by himself and counsel; to demand the nature and cause of the accusation against him; to meet the witnesses face to face; to have compulsory process to compel the attendance of witnesses in his behalf; and in prosecutions by indictment, or information, to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed; which county or district shall have been previously ascertained by law.

Wyoming

Const. Art. 1 § 10

In all criminal prosecutions the accused shall have the right to defend in person and by counsel, to demand the nature and cause of the accusation, to have a copy thereof, to be confronted with the witnesses against him, to have compulsory process served for obtaining witnesses, and to a speedy trial by an impartial jury of the county or district in which the offense is alleged to have been committed. When the location of the offense cannot be established with certainty, venue may be placed in the county or district where the corpus delecti [delicti] is found, or in any county or district in which the victim was transported.

 

STATUTORY GUIDANCE ON THE RIGHT TO COUNSEL

STATE

CITATIONS

 

Alabama

Ala. Code §15-12-21

 

AL ST RCRP Rule 4.4; 6.1

 

§15-12-21 requires a court to appoint counsel if an indigent defendant is entitled to counsel, does not expressly waive counsel and cannot afford counsel or otherwise obtain the assistance of counsel through another indigent defense system.

 

Rule 4.4 requires a court to inform a defendant at their initial appearance of their right to be represented by counsel and advise the defendant that they will be afforded time and opportunity to retain counsel and that counsel will be appointed to represent them if they are indigent. Requires the court to determine conditions of release in accordance with Rule 7.3.

 

Rule 6.1 provides that a defendant is entitled to be represented by counsel in any criminal proceeding and, if indigent, shall be entitled to have an attorney appointed to represent them in all criminal proceedings in which representation by counsel is constitutionally required. Specifies that the right to be represented shall include the right to consult in private with an attorney or the attorney's agent, as soon as feasible after a defendant is taken into custody, at reasonable times thereafter, and sufficiently in advance of a proceeding to allow adequate preparation.

Alaska

Alaska Stat. Ann. §18.85.100; §18.85.110

 

Alaska R. Crim. P. 5

§18.85.110 requires a court to clearly inform a defendant of the right of an indigent person to be represented by an attorney at public expense if the defendant is not represented by an attorney at the time of their first appearance and is entitled to the right of representation under §18.85.100.

 

§18.85.110 also requires a court to promptly notify the public defender agency or the office of public advocacy if it determines under §18.85.120 that a defendant qualifies.

 

Rule 5 requires the court to inform the defendant of the right to retain counsel and the right to request appointment of counsel at public expense if the defendant is financially unable to employ counsel. Requires the court to allow the defendant reasonable time and opportunity to consult counsel and shall admit the defendant to bail as provided by law and the rules.

Arizona

Ariz. R. Crim. P. 4.2; 6.1; 6.2

 

Rule 4.2 requires a magistrate, at a defendant’s initial appearance, to inform the defendant of the right to counsel and appoint counsel if the defendant is eligible for and requests appointed counsel under Rule 6. Requires a magistrate to determine release including determining conditions of release on accordance with Rule 7.2, including whether the defendant is non-bailable. Requires the court to consider comments offered by the victim concerning conditions of release.

 

Rule 6.1 provides that a defendant is entitled to be represented by counsel in certain criminal proceedings and specifies that the right to be represented includes the right to consult in private with an attorney as soon as feasible after a defendant is taken into custody, at reasonable times thereafter, and sufficiently in advance of a proceeding to allow adequate preparation. Rule 6.1 further details that an indigent defendant is entitled to have an attorney appointed to represent them in any criminal proceeding which may result in punishment by loss of liberty and in any other criminal proceeding in which the court concludes that the interests of justice so require.

 

Rule 6.2 requires the presiding judge of each county to establish procedures for appointment of counsel for indigent persons.

Arkansas

Ark. R. Crim. P. 8.2; 8.3

 

Rule 8.2 requires a defendant’s desire for, and ability to retain, counsel to be determined by a judicial officer before the first appearance whenever practicable. Requires a court to appoint counsel to represent an indigent defendant if they do not knowingly and intelligently waive counsel.

 

Rule 8.3 requires the court to inform a defendant at the first appearance that they have a right to counsel and that they have a right to communicate with their counsel, family or friends and that reasonable means will be provided to enable communication. Prohibits further steps in proceedings other than a pretrial release inquiry until the defendant and counsel have had an adequate opportunity to confer, unless the defendant has intelligently waived the right to counsel or has refused the assistance of counsel. The court shall then proceed to decide the question of pretrial release.

California

Cal. Penal Code §858; §859; §987

 

§858 requires a court to immediately inform a defendant of their right to counsel in every stage of proceedings when the defendant is brought to the court upon arrest for a public offense.

 

§859 requires the magistrate to inform the defendant of the right to the aid of counsel, ask them if they desire the aid of counsel, and allow them a reasonable time to send for counsel, and provides that if the defendant desires and is unable to employ counsel, the court must assign counsel to defend them.

 

§987 provides that if the defendant is without counsel at the time of arraignment, they must be informed by the court that it is their right to have counsel before being arraigned, and must be asked if they desire the aid of counsel, and that if they desire and are unable to employ counsel, the court must assign counsel to defend them.

Colorado

Colo. Rev. Stat. Ann. §16-7-207

 

CO ST RCRP Rule 5; 44

 

§16-7-207 requires the court to inform the defendant of the right to counsel at first appearance make certain that the defendant understands their rights. Requires the court to also inform the defendant that indigent defendants have the right to submit an application for a court appointed attorney, and, upon payment of the application fee, be assigned counsel as provided by law and the applicable rules of criminal procedure. Requires the court to inform the defendant of the right to bail, if the offense is bailable, and the amount of bail that has been set by the court.

 

Rule 5 requires the court to inform the defendant of the right to counsel at first appearance make certain that the defendant understands their rights. Requires the court to inform the defendant that indigent defendants have the right to request the appointment of counsel or consult with the public defender before any further proceedings are held. Requires the court to inform the defendant of the right to bail, if the offense is bailable, and the amount of bail that has been set by the court. Provides that if no county judge is immediately available to set bond when the defendant is in custody any available district judge may set bond, or the defendant may be admitted to bail pursuant to Rule 46.

 

Rule 44 requires the court to advise the defendant of the right to counsel if they appear in court without an attorney. If a court finds that a defendant is financially unable to obtain counsel, an attorney shall be assigned to represent the defendant at every stage of the trial court proceedings. In misdemeanor cases the court can appoint law students acting under specified court rules.

Connecticut

Conn. Gen. Stat. Ann. §54-1b

§54-1b requires that a defendant be advised by the court that they have a right to counsel when they are arraigned before the superior court. Requires that each defendant be allowed a reasonable opportunity to consult with counsel.

District of Columbia

D.C. Super. Ct. R. Crim. P. 44

 

Rule 44 provides that a defendant who is unable to obtain counsel is entitled to have counsel appointed to represent the defendant at every stage of the proceeding from initial appearance through appeal, unless the defendant waives this right.

Delaware

Del. Code Ann. tit. 29, §4604

 

Del. Code Ann. tit. 11, §5103

 

Del. Super. Ct. Crim. R. 5; 44

 

§4604 requires the Office of Defense Services to counsel and defend an indigent person, whether they are held in custody without commitment or charged with a criminal offense, at every stage of the proceedings following arrest.

 

§5103 requires the superior court to assign counsel to any person on trial for specifically listed offenses and also to defendants in any criminal prosecution as provided by the rules of criminal procedure.

 

Rule 5 requires that a magistrate inform a defendant of their right to counsel or to request assignment of counsel if the defendant is unable to obtain counsel. Requires the magistrate to allow the defendant reasonable time and opportunity to consult counsel. Requires that a magistrate inform a defendant of the circumstances under which they may secure pretrial release. After providing reasonable time and opportunity for the defendant to consult counsel the court shall detain or conditionally release the defendant.

 

Rule 44 requires that counsel be assigned to every defendant who is unable to obtain counsel to represent that defendant at every stage of the proceedings from initial appearance before the committing magistrate or court through appeal when required by law or deemed appropriate by the court, unless a defendant chooses to waive counsel.

Florida

Fla. R. Crim. P. 3.111; 3.130

Rule 3.111 requires that counsel be appointed for qualified defendants when the person is formally charged or as soon as is feasible after custodial restraint or at the first appearance before a judge.

 

Rule 3.130 requires the public defender or an assistant public defender to attend a defendant’s first appearance proceeding either in person or by other electronic means. Requires adequate notice to be provided to the public defender. Requires the court to advise defendants that they have a right to counsel, and if they are financially unable to afford counsel, that counsel will be appointed. Requires, if practicable, the court to determine whether a defendant is financially able to afford counsel and whether they desire counsel prior to the first appearance. If the court determines that the defendant desires and is entitled to appointed counsel the court shall immediately appoint counsel. Requires this determination to be made and counsel to be appointed no later than the first appearance and before any other proceedings take place at the first appearance. Authorizes counsel to be appointed for the limited purpose of representing a defendant at the first appearance only. Requires the court to allow a defendant reasonable time to send for counsel if the defendant has employed counsel or is financially able to do so, and, if necessary, requires the court to postpone the first appearance hearing. A court may also appoint counsel to represent a defendant for the first appearance hearing if a postponement will likely result in continued incarceration of the defendant. Provides that no further steps in the proceeding should be taken until the defendant and counsel have had an adequate opportunity to confer unless the defendant has intelligently waived the right to counsel. The court shall then proceed to determine conditions of release pursuant to Rule 3.131.

Georgia

Ga. Code Ann. §17-12-23

§17-12-23 requires the circuit public defender to provide representation in any case prosecuted in a superior court under state law. Specifies that entitlement to the services of counsel begins not more than three business days after the indigent person is taken into custody, or service is made upon them of the charge, petition, notice, or other initiating process and the defendant requests for counsel to be appointed.

Hawaii

Haw. Rev. Stat. Ann. §802-1; §802-2; §802-3; §802-5; §803-9

§802-1 Specifies that any indigent person who is arrested for, charged with or convicted of an offense is entitled to be represented by the public defender. The appearance of the public defender in all judicial proceedings is subject to approval by the court.

 

§802-2 requires a court to advise a defendant of their right to representation by counsel, and the right to have counsel appointed at state cost if they cannot afford counsel, when they appear without counsel at a criminal proceeding in which a defendant is entitled by law to representation of counsel.

 

§802-3 authorizes any person entitled to representation by a public defender or other appointed counsel to request at any reasonable time that any judge appoint counsel.

 

§802-5 requires a court to appoint counsel to represent the defendant all stages of the proceedings, including appeal, if it appears to the court that a person requesting appointment of counsel meets the requirements for appointment.

 

§803-9 makes it unlawful to deny a defendant who has been arrested for examination the right of seeing, at reasonable intervals and for a reasonable time at the place of the defendant’s detention, counsel or a member of their family.

Idaho

Idaho Code Ann. §19-852

 

I.C.R. 5; 10; 44

 

 

§19-852 provides that an indigent person who is being detained by an officer or who is under formal charge of having committed a serious crime is entitled to be represented by an attorney to the same extent as a person who has employed their own counsel. Specifies that an indigent person who qualifies for appointment of counsel is entitled to be counseled and defended at all stages of the matter beginning with the earliest time when a person providing his or her own counsel would be entitled to be represented.

 

Rule 5 provides that at first appearance a defendant shall be advised of their right to counsel and their right to communicate with counsel, or immediate family, and that reasonable means will be provided for the defendant to do so. Requires that a defendant also be informed of their right to bail. If a defendant appears without counsel the court shall advise the defendant of the right to counsel, the right to apply for court appointed counsel, and the right to request counsel at any stage of the proceedings. If a defendant wishes to waive the right to counsel the court may appoint counsel for the limited purpose of advising and consulting with the defendant regarding the wavier. Following the advisement of rights the court is required to set bail.

 

Rule 10 provides that the defendant is entitled to appear with counsel at an arraignment hearing, or the proceedings may be delayed for a reasonable period of time in order for counsel to be retained or appointed. 

 

Rule 44 provides that every defendant who is entitled to appointed counsel shall have counsel assigned to represent them from initial appearance unless the defendant waives counsel.

Illinois

725 Ill. Comp. Stat. Ann. 5/109-1

 

725 Ill. Comp. Stat. Ann. 5/113-3

5/109-1 requires a court to inform a defendant of their right to counsel and if they are indigent requires the court to appoint a public defender or licensed attorney to represent them. Requires the court to admit the defendant to bail in accordance with law. Prohibits a hearing to deny bail from being conducted by way of closed circuit television. 

 

5/113-3 requires that all defendants be allowed counsel prior to pleading to a charge. If a defendant wishes to be represented and is not represented before arraignment the court shall allow time for the defendant to obtain counsel and consult with counsel before pleasing. If the court determines that the defendant is indigent and desires counsel the court shall appoint the public defender or other counsel.

Indiana

Ind. Code Ann. §35-33-7-5; §35-33-7-6

 

§35-33-7-5 requires a court at an initial hearing to inform a defendant that they have a right to retain counsel and the right to assigned counsel at no expense if they are indigent. Requires a court to inform the defendant of the amount and conditions of bail.

 

§35-33-7-6 requires a court to determine whether a person who requests assigned counsel is indigent and, if so, assign counsel prior to the completion of the initial hearing.

Iowa

Iowa Code Ann. §815.10; §811.2

 

Iowa R. Civ. P. 2.2; 2.28; 2.8

 

§811.2 requires a court to determine pretrial release conditions at the initial appearance. Requires a court to inform a defendant at their initial appearance that they have a right to have conditions of release reviewed by an attorney. If the defendant desires a review and is indigent the court is required to appoint an attorney to represent the defendant for the purpose of review.

 

§815.10 requires the court to appoint the public defender to represent an indigent defendant at any stage of criminal proceedings in which the defendant is entitled to legal assistance at public expense. The court may do so for cause and upon its own motion or upon application by the defendant or a public defender.

 

Rule 2.2 requires the court to inform the defendant at initial appearance of the defendant’s right to retain counsel, of the circumstances under which the defendant may secure pretrial release, of the defendant’s right to review any conditions imposed on release, and of the right to request appointment of counsel if the defendant is unable to retain counsel due to being indigent. Requires the court to allow the defendant reasonable time and opportunity to consult counsel. Authorizes the court to appoint counsel to represent the defendant at public expense if the magistrate determines the defendant to be indigent.

 

Rule 2.28 specifies that every defendant who is indigent is entitled to have counsel appointed to represent them at every stage of the proceedings from the defendant’s initial appearance before the court through appeal.

 

Rule 2.8 requires a court to inform a defendant of their right to counsel if they appear for arraignment unrepresented and ask if they desire counsel before proceeding any further. Requires the court to appoint counsel for indigent defendants if requested.

Kansas

Kan. Stat. Ann. §22-4503

§22-4503 provides that any defendant charged with a felony is entitled to have the assistance of counsel at every stage of the proceedings against such defendant. Requires a court where such a defendant appears unrepresented to inform the defendant of their right to counsel and also that counsel will be appointed to represent the defendant if they are not financially able to employ an attorney. Requires the court to give the defendant an opportunity to employ counsel of the defendant’s own choosing if the defendant is able to do so, and requires the court to give the defendant reasonable opportunity to consult with counsel. If a defendant is determined to be indigent under §22-4504, the court shall appoint an attorney from the panel for indigents’ defense services or otherwise in accordance with the system for providing legal defense services. Requires that counsel have free access to the defendant at all times for purposes of representation.

Kentucky

Ky. Rev. Stat. Ann. §31.110

 

Ky. RCr 3.05

 

§31.110 provides that an indigent person who is being detained by an officer or who is under formal charge of having committed a serious crime is entitled to be represented by an attorney to the same extent as a person who has employed their own counsel. Specifies that an indigent person who qualifies for appointment of counsel is entitled to be counseled and defended at all stages of the matter beginning with the earliest time when a person providing his or her own counsel would be entitled to be represented.

 

Rule 3.05 requires the court to inform a defendant of their right to counsel at initial appearance. Requires the court to allow the defendant reasonable time and opportunity to consult with counsel, and release the defendant on personal recognizance or admit the defendant to bail if the offense is bailable. Requires the court to appoint counsel if the defendant is financially unable to do so unless the defendant waives counsel. If the court appoints counsel, the appointment continues for all future stages of the criminal proceeding.

Louisiana

LA C.Cr.P. Art. 230.1; 511; 513

 

Article 230.1 requires law enforcement to bring an arrested defendant promptly to court, within 72 hours from the time of arrest, for the purpose of appointing counsel. Requires the court to appoint counsel if the defendant is entitled and the court may, at its discretion, determine or review a prior determination of the amount of bail.

 

Article 511 provides that the defendant in every instance has the right to defend himself and to have the assistance of counsel and that counsel shall have free access to the defendant, in private, at reasonable hours.

 

Article 513 requires a court to inform the defendant of the right to have counsel appointed to defend them if they are indigent, prior to the entry of a plea, when a defendant appears for arraignment without counsel. Requires the court to provide counsel before the defendant pleads if the defendant desires counsel and the court finds the defendant to be indigent.

Maine

Me. Rev. Stat. tit. 15, §810

 

ME R U CRIM P Rule 5

 

§810 requires competent defense counsel to be assigned by the court, prior to arraignment, if it appears to the court that the defendant does not have sufficient means to employ counsel and they are charged with a felony unless the defendant waives counsel after being fully advised if their rights. Authorizes the court to appoint counsel for a defendant in any criminal case when it appears to the court that the defendant does not have sufficient means to employ counsel.

 

Rule 5 requires the court to inform the defendant of their right to retain counsel, and to request the assignment of counsel, and to be allowed a reasonable time and opportunity to consult counsel before entering a plea. Requires the court to assign counsel to represent the defendant no later than the time of the initial appearance, unless the defendant waives counsel. Authorizes a court to assign counsel for the day for the limited purpose of representing the defendant at the initial appearance or arraignment.

Maryland

Md. Code Ann., Crim. Proc. §16-204

 

Md. Rule 4-213; 4-213.1; 4-215

 

 

§16-204 requires that counsel be provided for indigent defendants in criminal proceedings where the defendant is alleged to have committed a serious offense and in criminal proceedings where an attorney is constitutionally required to be present prior to presentment being made before a commissioner or judge.

 

Rule 4-213.1 provides that a defendant has the right to be represented by an attorney at an initial appearance before a judicial officer. Unless a defendant waives the right to counsel or retains their own counsel, an indigent defendant is entitled to be represented by the public defender or an appointed attorney at their initial appearance. Requires the court to advise a defendant that appears at an initial appearance without counsel that the defendant has a right to an attorney and that if the defendant is indigent then an attorney will be provided. Specifies procedures for determining indigence and provides that a defendant shall be provided with a reasonable opportunity to consult with their attorney in confidence. Requires that the defendant be advised that unless an appointed or private attorney is able to participate within a reasonable amount of time, the initial appearance may need to be continued. If the initial appearance needs to be continued, the commissioner shall proceed to make a preliminary determination regarding release on personal recognizance. Provides for limited representation of a defendant for the initial appearance only in certain circumstances.

 

Rule 4-213 requires a judicial officer to follow the provisions of Rule 4-213.1 when a defendant appears in district court without an attorney. Requires a judicial officer to follow Rules 4-216 and 4-216.1 regarding pretrial release of the defendant. Requires a judicial officer to address counsel under the provisions of Rule 4-215 when a defendant appears unrepresented at their initial appearance in circuit court and requires the judicial officer to determine eligibility for pretrial release pursuant to Rule 4-216.

 

Rule 4-215 requires the court to provide a copy of the charging document containing notice of the right to counsel at the defendant’s first appearance in court without counsel and inform the defendant of the right to counsel and of the importance of the assistance of counsel. Requires the court to conduct a waiver inquiry if the defendant indicates a desire to waive counsel.

Massachusetts

Mass. Gen. Laws Ann. ch. 263, §5

 

Mass. R. Crim. P. 7; 8

 

S.J.C. Rule 3:10

 

 

§5 provides that a person accused of a crime shall at trial be allowed to be heard by counsel, to defend themselves.

 

Rule 7 requires the court to determine conditions of release, if any, at arraignment. Requires the court to assign the Committee for Public Counsel Services to represent a defendant who is found to be indigent or partially indigent and has not knowingly waived the right to counsel.

 

Rule 8 requires a court to follow procedures set forth in Court Rule 3:10 if a defendant initially appears in any court without counsel.

 

Rule 3:10 provides that if any defendant who has a right to be represented by counsel initially appears in any court without counsel, the judge shall advise the defendant the law requires that counsel be available in the proceeding, at public expense if necessary and if the court finds that the defendant wants counsel and cannot afford counsel, the Committee for Public Counsel Services will provide counsel at no cost or at a reduced cost. Requires counsel appointed under this rule to file an appearance in the case within 48 hours of notification of the appointment.

Michigan

Mich. Comp. Laws Ann. §763.1; §775.16

 

MI R RCRP MCR 6.005

 

§763.1 provides that a person accused of a crime shall at trial be allowed to be heard by counsel, to defend themselves.

 

§775.15 provides that a defendant who appears before a magistrate without counsel shall be advised of their right to have counsel appointed. If the defendant states that they are unable to procure counsel, the magistrate shall appoint counsel if the defendant is eligible under the Michigan indigent defense commission act.

 

Rule 6.005 requires the court to advise the defendant at arraignment of the defendant’s right to the assistance of a lawyer at all subsequent court proceedings and that the court will appoint a lawyer at public expense if the defendant wants one and is financially unable to retain one. Requires the court to promptly appoint a lawyer if it determines that the defendant is indigent. Requires that the appointed lawyer be promptly notified of the appointment. Requires the court to advise a defendant of the right to an attorney at all subsequent court proceedings if the defendant has waived the right to counsel initially.

Minnesota

Minn. Stat. Ann. §611.15; §611.16; §611.18

 

Minn. R. Crim. P. 5.01; 5.03; 5.04

 

§611.15 requires the court to advise a defendant who appears without counsel, at a proceeding where they are entitled to counsel, of the right to be represented by counsel and that counsel will be appointed to represent the person if the person is financially unable to obtain counsel.

 

§611.16 authorizes a defendant described in §611.14 to request at any time that the court appoint the public defender to represent them.

 

§611.18 requires the court to order the public defender to represent a qualified defendant requesting appointment of counsel. Authorizes a public defender to represent a person accused of violating the law prior to any court appearance when the defendant appears to be financially unable to obtain counsel. Such representation shall continue unless it is subsequently determined that the person is financially able to obtain counsel and such representation may be made available at the discretion of the public defender, upon the request of the defendant or someone on the defendant’s behalf. Any law enforcement officer may notify the public defender of the arrest of any such person.

 

Rule 5.01 provides the court shall inform the defendant of the right to have counsel appointed if eligible at the first appearance. Requires the court to set bail and other conditions of release under rule 6.02 at the first appearance.

 

Rule 5.03 requires the court to advise the defendant of the right to counsel in all proceedings and the right to communicate with defense counsel. If the defendant appears without counsel, and is financially unable to obtain counsel but qualifies for representation, the court is required to appoint counsel.

 

Rule 5.04 requires the court to advise the defendant of the right to counsel, and that the court will appoint the district public defender if the defendant has been determined to be financially unable to obtain counsel. Requires the court to advise the defendant of the right to request counsel at any stage of the proceedings.

Mississippi

Miss. Code. Ann. §99-15-15

 

URCCC Rule 6.03

 

§99-15-15 authorizes the court, in its discretion, to appoint counsel to represent a defendant charged with a felony or misdemeanor, if such person is indigent and is unable to employ counsel. Requires that such representation be available at every critical stage of the proceeding against the defendant where a substantial right may be affected.

 

Rule 6.03 requires the judicial officer to advise a defendant in custody of the right to assistance of an attorney, and that if he or she is unable to afford an attorney, an attorney will be appointed. Requires the judicial officer to advise the defendant of conditions under which he or she may obtain release.

Missouri

Mo. Ann. Stat. §545.820; §600.048

 

Mo. Sup. Ct. R. 31.02

 

§545.820 requires the court to assign counsel at the request of the defendant when the defendant appears before the court for arraignment unrepresented on a felony charge.

 

§600.048 requires every person in charge of a local detention facility to post a conspicuous notice that every person held in custody under a charge or suspicion of a crime is entitled to an attorney and that any person held in custody on a case specified under §600.042 who wants an attorney but is unable to afford one shall be provided with a lawyer to represent them by the state upon request. Specifies that the notice shall contain a listing of cases specified under §600.042 and contact information for requesting representation by the public defender system. Authorizes entitled defendants to request counsel when they appear in court without counsel at any stage of a case. Authorizes any other person to request counsel on behalf of a defendant at any stage of a case.

 

Rule 31.02 provides that a defendant in all criminal cases has the right to appear and defend in person and by counsel. Requires the court to advise an unrepresented defendant of their right to counsel at the first appearance and advise them that the court may appoint counsel to represent them if the defendant is unable to employ counsel. Requires the court to appoint counsel upon a finding of indigency.

Montana

Mont. Code Ann. §46-8-101

 

§46-8-101 requires the court to inform a defendant of the right to counsel during the initial appearance and requires the court to inquire whether the defendant desires the aid of counsel. Requires the court to assign counsel to represent a defendant without unnecessary delay, pending determination of eligibility under §47-1-111, when the defendant desires assigned counsel due to finical inability to retain counsel.

Nebraska

Neb. Rev. Stat. Ann. §29-3902

§29-3902 requires the court, at first appearance, to advise the defendant of their right to court-appointed counsel if they are indigent. Requires the court to appoint the public defender to represent the defendant in all proceedings before the court if the court determines the defendant to be indigent.

Nevada

Nev. Rev. Stat. Ann. §178.397

§178.397 provides that defendants who are financially unable to obtain counsel are entitled to have counsel assigned to represent them at every stage of the proceedings from the defendant’s initial appearance before a magistrate unless the defendant waives counsel.

New Hampshire

N.H. Rev. Stat. Ann. §604-A:2; §604-A:3

§604-A:2 requires that a court advise a defendant who appears without counsel of the right to be represented by counsel and that counsel will be appointed if the defendant is financially unable to employ counsel. Requires the court to appoint counsel if it finds that the defendant is financially unable to employ counsel. Requires the court to act on any application for appointed counsel on the same day of the defendant’s first appearance if the court has information indicating that the defendant has a mental illness. Requires the court to appoint counsel without a formal application process if a defendant appears without counsel and mental illness appears to be interfering with the defendant’s ability to communicate, understand the proceedings, or complete a formal application in a timely manner.

 

§604-A:3 requires appointed counsel to represent a defendant from initial appearance before the court through every stage of the proceedings until the entry of final judgment.

New Jersey

N.J. Stat. Ann. §2A:158A-5

 

N.J. Ct. R. 3:4-2

§2A:158A-5 provides that it is the duty of the public defender to provide for the legal representation of any indigent defendant who is formally charged with the commission of an indictable offense.

 

Rule 3:4-2 requires that the first appearance for a defendant in custody shall happen within 48 hours and be held in front of a judge with the authority to set conditions of release. Authorizes the court to assign the public defender to represent the defendant for purposes of first appearance if the defendant is unrepresented. Requires the court to inform defendants charged with an indictable offense of their right to counsel, the right to be represented by a public defender if indigent, and ask the defendant specifically if they want counsel. Requires that an application be provided to a defendant that request counsel and that the application be processed immediately by the court. Requires the court set pretrial release conditions as provided in Rule 3:26 and set a date and time for a hearing if the prosecutor has filed a motion for an order of pretrial detention. Requires the court to inform defendants charged with non-indictable offenses of their right to retain counsel and if indigent and entitled by law, their right to appointment of counsel. Requires the court to set pretrial release conditions and assign counsel for defendants charged with non-indictable offenses if the defendant is entitled by law, found to be indigent and has not waived counsel.

New Mexico

N.M. Stat. Ann. §31-16-3; §31-16-4; §31-15-12

§31-16-3 provides that an indigent person who is being detained by an officer or who is under formal charge of having committed a serious crime is entitled to be represented by an attorney to the same extent as a person who has employed their own counsel. Specifies that an indigent person who qualifies for appointment of counsel is entitled to be counseled and defended at all stages of the matter beginning with the earliest time when a person providing his or her own counsel would be entitled to be represented.

 

§31-16-4 provides that an indigent person must be informed of the right of a needy person to be represented by an attorney at public expense when the defendant is being detained by an officer or who is under formal charge of having committed a serious crime, and is not represented by an attorney under conditions in which a person who has employed their own counsel would be entitled to be so represented. Requires notice again at any later judicial proceedings related to the same matter. Requires the court to promptly assign counsel if the court determines the person is entitled to representation at public expense.

 

§31-15-12 requires a court to inform a defendant who appears in court without counsel of their right to confer with the district public defender and the right to be represented by the district public defender at all stages of proceedings if the defendant is financially unable to obtain counsel. Requires the court to notify the district public defender and continue the proceedings after notice is given until the defendant has applied with the district public defender. Requires peace officers to notify the district public defender of any person not represented by counsel who is being forcibly detained and who is charged with, or under suspicion of committing an offense.

New York

N.Y. Crim. Proc. Law §170.10; §180.10

§170.10 provides that a defendant has the right to the aid of counsel at arraignment and every subsequent stage of action when proceedings are brought upon an information. Provides that a defendant who appears without counsel has the right to an adjournment for the purpose of obtaining counsel, the right to communicate via phone or letter, free of charge, for the purpose of obtaining counsel, and the right to have counsel assigned by the court in any case that is not a traffic or general infraction and where the defendant is financially unable to obtain representation. Requires the court to inform the defendant of all rights specified above. Requires the court to issue a securing order upon arraignment which either releases the defendant on their own recognizance or fixing bail.

 

§180.10 provides that a defendant has the right to the aid of counsel at arraignment and at every subsequent stage of action when proceedings are brought upon a felony complaint. Provides that a defendant who appears without counsel has the right to an adjournment for the purpose of obtaining counsel, the right to communicate via phone or letter, free of charge, for the purpose of obtaining counsel, and the right to have counsel assigned by the court in any case where the defendant is financially unable to obtain representation. Requires the court to inform the defendant of all rights specified above. Requires the court to accord the defendant opportunity to exercise such rights and must itself take such affirmative action as is necessary to effectuate them. Requires the court to issue a securing order upon arraignment which either releases the defendant on their own recognizance, fixes bail, or commits the defendant.

North Carolina

N.C. Gen. Stat. Ann. §7A-451; §15A-511

 

 §7A-451 specifies that an indigent person is entitled to services of counsel. Specifies that entitlement to the services of counsel begins as soon as feasible after the indigent is taken into custody or service is made upon him of the charge, petition, notice or other initiating process and continues through any critical stage of the proceeding.

 

§15A-511 requires the magistrate, at the defendant’s initial appearance, to inform the defendant their right to communicate with counsel, and the general circumstances under which they may secure release under Article 26.

North Dakota

N.D. Cent. Code Ann. §29-05-20 et seq. superseded by N.D. R. Crim. P. 5; 44

 

Rule 5 requires a magistrate to inform a defendant in all cases of the defendant’s right to assistance of counsel, the defendant’s right to be represented by counsel at each and every stage of the proceedings, the defendant’s right to have legal services provided at public expense if the defendant is unable to afford counsel and is qualified, and the defendant’s right to be admitted to bail under Rule 46. Requires a court to also advise a defendant charged with a felony of their right to assistance of counsel at the preliminary examination.

 

Rule 44 provides that an indigent defendant facing a felony charge is entitled to have counsel provided at public expense to represent them at every stage of the proceeding from initial appearance through appeal unless the defendant waives counsel. Provides that an indigent defendant facing a non-felony charge is entitled to have counsel provided at public expense to represent the defendant at every stage of the proceeding from initial appearance through appeal unless the defendant waives counsel or does not qualify. Authorizes the court to appoint counsel at a defendant’s expense if the defendant is not indigent but is unable to obtain counsel.

Ohio

Ohio Rev. Code Ann. §2937.02; §2937.03

 

Ohio Crim. R. 5, 44

 

§2937.02 requires the court to inform a defendant at the initial appearance of the right to have counsel and the right to a continuance in the proceedings to secure counsel.

 

§2937.03 requires a court to continue a case after arraignment if the defendant is not represented by counsel and has expressed a desire to consult with an attorney to provide a reasonable time to allow the defendant to send for or consult with counsel. Requires the court to set bail for the later appearance if the offense is bailable. Requires that a defendant be allowed to send a message to any attorney if the defendant is not released to make arrangements for legal counsel or bail.

 

Rule 5 requires a court to inform a defendant at first appearance of their right to counsel, the right to a reasonable continuance in the proceedings to secure counsel, and the right to have counsel appointed without cost if the defendant is unable to employ counsel. Requires the court to admit the defendant to bail if they were not previously.

 

Rule 44 requires that counsel be assigned to represent a defendant who is unable to obtain counsel and is charged with a serious offense. Requires counsel to represent the defendant at every stage of the proceedings from initial appearance through appeal unless the defendant waives counsel. Authorizes a court to appoint counsel for a defendant who is unable to obtain counsel and is charged with a petty offense.

Oklahoma

Okla. Stat. Ann. tit. 22, §13 §251

§13 provides that a defendant in a criminal action is entitled to counsel and to appear and defend in person and with counsel.

 

§251 requires a magistrate to immediately inform a defendant of their right to the aid of counsel at every stage in the proceedings when the defendant is brought before the magistrate upon arrest on a charge of having committed a public offense.

Oregon

Or. Rev. Stat. Ann. §135.040; §135.045; §135.050; §135.070

 

§135.040 specifies that if the defendant appears for arraignment without counsel, the defendant must be informed by the court that it is the right of the defendant to have counsel before being arraigned. Requires the court to ask if the defendant desires the aid of counsel.

 

§135.045 requires the court to determine if the defendant wants to be represented by counsel when they appear for arraignment or thereafter unrepresented. Requires the court to appoint counsel in accordance with §135.050 if the defendant wishes to be represented.

 

§135.050 requires the court to appoint counsel for a defendant in a criminal matter if the defendant requires counsel and it appears to the court that the defendant is financially unable to hire counsel. Specifies that appointment of counsel shall continue during all criminal proceedings resulting from the defendant’s arrest through acquittal or the imposition of punishment.

 

§135.070 requires before any proceedings take place, that a court inform a defendant charged with a felony of the defendant’s right to the aid of counsel.

Pennsylvania

Pa. R. Crim. P. 122

Rule 122 requires that counsel be appointed in all summary cases for all defendants who are without the financial resources, or are otherwise unable to employ counsel. Requires appointment in all court cases prior to the preliminary hearing when a defendant is without the financial resources, or is otherwise unable to employ counsel. Authorizes the court to appoint counsel on its own motion when the interests of justice require it.

Rhode Island

Dist. R. Crim. P. 5; 44

Rule 5 provides that a defendant who has been arrested shall be afforded a prompt hearing for the purpose of admission to bail. Requires the court to inform a defendant of their right to retain counsel and of their right to request the assignment of counsel if the defendant is unable to obtain counsel. Requires the court to allow reasonable time and opportunity for the defendant to consult with counsel and where authorized by statute the court shall admit the defendant to bail as provided by law.

 

Rule 44 requires a court to advise a defendant who appears without counsel of their right to be represented and if eligible their right to have counsel assigned to represent them. Requires the court to assign counsel to represent the defendant at every stage of the proceeding unless the defendant is able to obtain their own counsel or elects to proceed without counsel.

South Carolina

S.C. Code Ann. §17-3-10

 

SCACR 602

§17-3-10 requires that any person entitled to counsel under the U.S. Constitution to be advised of that right and if it is determined that the person is financially unable to retain counsel, then counsel shall be appointed by order of the appropriate judge unless the defendant waives counsel.

 

Rule 602 requires that defendants arrest for commission of a crime be taken as soon as practicable before the clerk of court for the purpose of securing the accused the right to counsel. Requires that the defendant be informed of their right to counsel and their right to appointed counsel if they are financially unable to employ counsel. Requires that the defendant’s application for the appointment of counsel or services of the public defender be taken when the defendant represents that they are financially unable to employ counsel. Requires immediate notice of the office of the public defender if an application is approved and requires the public defender to immediately enter their representation. If there is no local public defender the clerk shall immediately notify the court of the request for appointment of counsel and appointment of counsel shall be made immediately with prompt notification to the defendant and to appointed counsel.

South Dakota

S.D. Codified Laws §23A-40-6; §23A-4-3

§23A-40-6 requires the court, upon the request of a defendant who has demonstrated that they lack sufficient resources to employ counsel, to assign counsel at any time following arrest or commencement of detention without formal charges.

 

§23A-4-3 Requires a court to inform a defendant charged with an offense that requires a preliminary hearing of the defendant's right to retain counsel and to request assignment of counsel if the defendant is unable to obtain counsel, and of the general circumstances under which the defendant may secure pretrial release. Requires the court to allow the defendant reasonable time and opportunity to consult with counsel and shall admit the defendant to bail.

Tennessee

Tenn. Code Ann. §40-14-102; §40-14-103; §40-14-202

 

Tenn. R. Crim. P. 5, 44

§40-14-102 provides that every person accused of any crime or misdemeanor is entitled to counsel in all matters necessary for the person’s defense.

 

§40-14-103 provides that a defendant is entitled to appointed counsel if they are unable to employ counsel.

 

§40-14-202 requires the court to appoint counsel in all felony cases where the defendant is not represented and the court determines that the defendant is indigent and has not waived counsel. Authorizes a court to call upon legal aid agencies operating in conjunction with accredited law schools to recommend attorneys for appointment. Prohibits further proceedings following appointment of counsel to allow the attorney sufficient opportunity to prepare the case.

 

Rule 5 requires a magistrate to inform a defendant charged with a felony at initial appearance of their right to counsel, their right to appointed counsel if indigent and the circumstances under which the defendant may obtain pretrial release.

 

Rule 44 provides that every indigent defendant is entitled to have counsel assigned for all matters necessary to the defense and at every stage of the proceedings unless the defendant waives counsel.

Texas

Tex. Crim. Proc. Code Ann. art. 1.051; 26.04

Article 1.051 provides that a defendant in a criminal matter is entitled to be represented by counsel in an adversarial judicial proceeding. This includes the right to consult in private with counsel sufficiently in advance of a proceeding to allow adequate preparation. Provides that an indigent defendant is entitled to have an attorney appointed to represent them in any adversary judicial proceeding. If an indigent defendant is entitled to and requests appointed counsel and if adversarial judicial proceedings have been initiated against the defendant, a court or the courts' designee shall appoint counsel as soon as possible, but not later than the end of the third working day after the defendant’s request for appointment is received in counties with a population of less than 250,000, and not later than the end of the first working day after a request is received in counties with a population greater than 250,000. Provides that a court may not direct or encourage a defendant to communicate with the attorney representing the state until the court advises the defendant of their right to counsel and the procedure for requesting appointed counsel. Provides for the appointment of counsel when request by an indigent defendant prior to the initiation of adversarial judicial proceedings. Specifies that appointment of counsel is not required until a defendant’s first court appearance or when adversarial judicial proceedings are initiated if they are released prior to appointment of counsel.

 

Article 26.04 requires local judges to adopt local rules providing procedures for timely and fairly appointing counsel for indigent defendants. Procedures are required to authorize judges to appoint counsel for indigent defendants, and to ensure that each indigent defendant who appears in court without counsel has the opportunity to confer with appointed counsel before the commencement of judicial proceedings. Provides that a managed assigned counsel program where one exists may appoint counsel to represent a defendant in accordance with program guidelines.

Utah

Utah Code Ann. §77-32-302; §77-1-6

§77-32-302 requires that an indigent criminal defense services provider be assigned to represent each defendant under arrest or charged with an eligible crime if the defendant requests counsel or the court on its own motion orders representation. Authorizes the court to make a determination of indigency at any time.

 

§77-1-6 specifies that in criminal prosecutions a defendant is entitled to appear in person and defend in person or by counsel, and to be admitted to bail or be entitled to trial within 30 days of arraignment if they are unable to post bail.

Vermont

Vt. Stat. Ann. tit. 13, §5231; §5233; §5234

 

Vt. R. Crim. P. 5; 44

 

§5231 specifies that a needy person, who is being detained by a law enforcement officer without charge or judicial process, or who is charged with having committed a serious crime, is entitled to be represented by an attorney to the same extent as a person having his or her own counsel.

 

§5233 specifies that a needy person who is entitled to be represented by an attorney under §5231 is entitled to be counseled and defended at all stages of the matter beginning with the earliest time when a defendant providing their own counsel would be entitled to be represented by an attorney.

 

§5234 requires a law enforcement officer, magistrate, or court to clearly inform a defendant of the right to be represented by an attorney and of the right of needy persons to be represented at public expense. Requires a law enforcement officer, magistrate, or court to notify the appropriate public defender that the defendant is not represented, if he or she qualifies for representation.

 

Rule 5 specifies that no further proceedings can occur until counsel if authorized has been assigned and until the defendant and counsel have had an adequate opportunity to confer, unless the defendant has waived counsel.

 

Rule 44 provides that every defendant who is charged with a serious crime and is unable to obtain counsel has the right to have counsel assigned to represent them at every stage of the proceedings from initial appearance before the judicial officer through appeal.

Virginia

Va. Code Ann. §19.2-157; §19.2-158

§19.2-157 requires a court to inform a defendant charged with a criminal offense of their right to counsel when they appear before any court without representation. Requires that the defendant be allowed reasonable opportunity to employ counsel, or if appropriate the defendant may complete a statement od indigence provided for in §19.2-159.

 

§19.2-158 requires a court to inform a defendant who is not free on bail of their bail and the right to counsel when they are brought before a court. Requires the court to hear and consider motions by the defendant or the state relating to bail or conditions of release pursuant to §19.2-119. Requires that a hearing on bail or conditions of release be held as soon as practicable but in no event later than three calendar days following the making of a motion. Prohibits a hearing on the charges against the accused until the above requirements have been met and the defendant has been allowed a reasonable opportunity to employ counsel or if appropriate complete the statement of indigence.

Washington

Wash. Rev. Code Ann. §10.101.020

 

Wash. Rev. Code Ann. SUPER CT CR CrR 3.1

 

§10.101.020 requires that counsel be appointed for a defendant on a provisional basis if a court cannot determine whether a defendant is eligible before the time when the first services are to be rendered.

 

Rule 3.1 provides that the right to a lawyer shall extend to all criminal proceedings for specified offenses. Specifies that the right to a lawyer accrues as soon as feasible after the defendant is taken into custody, appears before a committing magistrate, or is formally charged, whichever occurs earliest. Requires that a lawyer be provided at every stage in the proceedings and that a lawyer initially appointed shall continue to represent a defendant through all stages of the proceeding. Requires that a person taken into custody be advised of their right to a lawyer and the right to have a lawyer appointed if the defendant is unable to afford one. Requires that a defendant be provided with access to a telephone and the contact information for the public defender at the earliest opportunity after being taken into custody. Requires that a lawyer be provided to any person who is financially unable to obtain one.

West Virginia

W. Va. Code Ann. §50-4-3

 

W. Va. R. Crim. P. 44

§50-4-3 requires a magistrate to advise a defendant at their initial appearance of their right to counsel and the right to have counsel appointed if the defendant cannot afford to retain counsel. Requires the magistrate to stay further proceedings if the defendant requests appointment of counsel and request a judge to appoint counsel. Requires that such judge shall appoint counsel. If no judge is available, requires the court clerk to appoint counsel from a list of attorneys in accordance with the rules established by the judge.

 

Rule 44 provides that every defendant who is unable to obtain counsel has the right to have counsel assigned to represent them at every stage of the proceedings from initial appearance before the magistrate or court through appeal.

Wisconsin

Wis. Stat. Ann. §967.06; §970.02

§967.06 requires that a defendant be informed of their right to counsel regardless of ability to pay as soon as is practicable after the person has been detained or arrested. Provides that a defendant who wishes to be represented and indicates as much at any time, and who claims they are not able to pay for a lawyer’s services, shall be immediately permitted to contact the authority for indigency determinations as is specified under §977.07.

 

§970.02 requires a judge at initial appearance to inform the defendant of their right to counsel and that an attorney will be appointed to represent them if they are financially unable to employ counsel. Requires the court to admit the defendant to bail in accordance with chapter 969. Requires a judge to refer a defendant who claims or appears to be indigent to the authority for indigency determinations.

Wyoming

Wyo. Stat. Ann. §7-6-104; §7-6-105

 

Wyo. R. Crim. P. 5, 44

§7-6-104 requires the public defender to represent any needy person who is under arrest or formally charged with having committed a serious crime if the defendant requests counsel or the court orders appointment of counsel on its own motion. Requires appointed counsel to represent the defendant at every stage of the proceedings, from the time of the initial appointment by the court until the entry of final judgment.

 

§7-6-105 Requires a court to advise a defendant at their initial appearance of the right to be represented by an attorney at public expense. Requires the court to notify an available public defender for the judicial district or appoint an attorney if the defendant indicates that they wish to be represented by an attorney.

 

Rule 5 requires a court to inform the defendant of their right to retain counsel and their right to appointed counsel unless they are charged with an offense for which appointment of counsel is not required. Requires the court to inform the defendant of the circumstances under which pretrial release may be secured in cases that are not required to be tried in district court. If an offense is required to be tried in district court, the court is required to provide the defendant reasonable time and opportunity to consult counsel and shall detain or conditionally release the defendant as authorized by statute.

 

Rule 44 provides defendants charged with specified offenses are entitled to be represented by appointed counsel, a right which extends from the first appearance through appeal. Provides that an attorney should be appointed at the earliest time after a defendant makes a request, but only after appropriate inquiry into the defendant’s financial circumstances and a determination of eligibility.

Source: National Conference of State Legislatures, 2016
Westlaw was used to conduct this research.