At arraignment, the judge will ask the defendant whether he or she has an attorney or needs one. If a defendant cannot afford an attorney, the government is required to provide an attorney to the defendant for free (at the government’s expense – and paid by taxpayers) if that defendant faces the possibility of any jail time (even if only for 1 day). This has nothing to do with whether the defendant actually goes to jail or not. In fact, many defendants don’t go to jail. This simply means that if the defendant might go to jail, he or she is allowed an attorney.

The right to counsel is based on interpretations of the United States Constitution by the U.S. Supreme Court (there is actually no direct language to a right to counsel in the Constitution). The U.S. Supreme Court has interpreted that the right to counsel is based on the 6th and 14th Amendments, and that a defendant is entitled to counsel whenever he or she may be deprived of liberty. Going to jail is a prime example of being deprived of liberty. So, that’s why if a defendant even faces the possibility of going to jail, he or she is entitled by law to an attorney.

In short, you should recognize that the right to counsel touches upon both criminal law and constitutional law.

NOTE: The right to counsel is also mentioned to a defendant when he or she receives his Miranda Warnings, which generally occurs shortly after the arrest.

Next, we’ll take a look at the three main types of arraignment pleas allowed by law.