Is everyone entitled to an appointed attorney while being questioned if they can’t afford one?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 15, 2021

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In 1966, the United States Supreme Court determined in its landmark decision, Miranda v. Arizona, that every defendant in adult criminal cases has a constitutional right to have an attorney (public defender) present during custodial interrogation. Subsequently, in 1967, in the case In Re Gault, the right was extended to juvenile court proceedings. According to the courts, every defendant, adult or juvenile, must be accorded the right to have a public defender present during custodial interrogation when it’s requested, regardless of his or her ability to pay for one.

To ensure that this constitutional right to counsel is accorded to indigent individuals, most states have established Public Defender offices. Under the public defender system, individuals are assigned attorneys based on financial need. Anyone whose income falls below a certain level will be assigned an assistant public defender to represent him or her throughout the criminal process. In juvenile court proceedings, a defendant’s financial need will be determined based on the income and assets of his or her parents. However, although a public defender is assigned to the juvenile, some jurisdictions may require the parents of the juvenile to pay back some portion of the cost of having a public defender assigned to the case.

Practically speaking, it’s often difficult to make a legitimate assessment of financial need at the time a juvenile is being questioned by police. As this is the case, many states will make assistant public defenders available for consultation by a suspect, irrespective of any final determination of the individual’s ability to pay for an attorney. These states have decided it is better to provide an attorney whether or not financial need has be established rather than run the risk of having a statement suppressed because the defendant’s constitutional right to a public defender during custodial interrogation was not observed by the law enforcement authorities. 

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