In some criminal cases, the defendant will be represented by a public defender instead of a private attorney. In this article, we’ll define the term “public defender,” explain the two different approaches to public defense, and explore whether or not defendants are allowed to choose their public defender. 

Key Takeaways

• A public defender is a lawyer assigned to represent indigent defendants
• An indigent defendant is one who cannot pay for their own legal counsel
• Public defenders are paid for by the government 
• According to the Sixth Amendment, the state can’t legally prosecute indigent defendants unless it provides them with an attorney 
• There are two approaches to public defense: vertical representation and horizontal representation
• Indigent defendants are not allowed to choose their own public defender
• Indigent defendants can request to have their court-appointed public defender replaced with a different one

What Is a Public Defender?

A public defender is a type of lawyer who represents criminal defendants who are indigent, or unable to afford to pay for their own legal counsel. Public defenders are appointed by the court to represent defendants and are paid by the federal, state, or county government. They are on staff as attorneys for the legislatively created public defender service. 

The origin of the public defender service is the Sixth Amendment to the Constitution, which says that the state can’t legally prosecute indigent defendants unless it provides them with an attorney. 

Public defender offices usually consist of a chief public defender managing assistant public defenders. Public defenders are licensed, familiar with their local court system, and often quite experienced as they typically have a heavy caseload.

Approaches to Public Defense

There are two approaches to public defense:

• Vertical representation - The same public defender works on a defendant’s case from beginning to end
• Horizontal representation - Specialized public defenders handle different parts of the same defendant’s case, such that a single defendant is represented by multiple public defenders as the case progresses

Choosing Public Defenders

Indigent defendants are not allowed to choose their own public defenders. A judge typically appoints the public defense office that will represent a defendant. The actual public defender (or public defenders in the case of horizontal representation) that will represent the defendant is then chosen within the public defense office. 

However, a defendant can ask the court to replace their court-appointed public defender with a different one. That being said, they are not guaranteed to have this request granted. If the public defender agrees to a substitution themselves, it is more likely that the defendant will be allowed a switch.