If you have been arrested and charged with a crime in South Carolina, are you entitled to the representation of counsel in your criminal case? Many people are surprised to learn that, in some cases, the answer is, “No.” While the right to counsel applies to certain types of criminal cases in South Carolina, there are many cases in which the right to be represented by an attorney does not apply.

What is the Right to Counsel in a Criminal Case?

When you are charged with a crime in South Carolina, you are presumed innocent until proven guilty. Unfortunately, this does not guarantee that justice will prevail. The statistics on wrongful convictions are staggering, and, as a defendant in South Carolina’s criminal justice system, it is up to you to do everything you can to avoid a life-altering conviction.

The right to counsel is intended to ensure that criminal defendants are not wrongfully convicted due to being unable to represent themselves ineffectively in court. It exists under the Sixth Amendment to the U.S. Constitution, which states in part:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . and to have the assistance of counsel for his defense.”

However, despite the Sixth Amendment’s language, the U.S. Supreme Court and the South Carolina Supreme Court have both held that the right to counsel does not apply in all criminal cases.

When Does the Right to Counsel Apply in South Carolina?

In criminal prosecutions under South Carolina law (i.e., driving under the influence, drug possession, domestic violence, and other similar types of crimes), the right to counsel applies “if a prison sentence is likely to be imposed upon conviction.” If you are not at risk for facing prison time should you get convicted, then the judge may not be required to afford you the right to counsel.

Crucially, this does not mean that you are prohibited from hiring a lawyer. Rather, it means that the state is not required to provide you with a public defender. If you can afford to hire an attorney, you should hire an attorney regardless of the severity of the charge (or charges) against you.

Are You Entitled to a Public Defender in South Carolina?

Even if you have the right to counsel, this does not necessarily mean that you are entitled to a public defender. Under Section 17-3-10 of the South Carolina Code of Laws:

“[I]f it is determined that [a defendant] is financially unable to retain counsel then counsel shall be provided upon order of the appropriate judge . . . .”

To have a public defender appointed to represent you, you must apply along with a signed affidavit, which states that you are “financially unable to retain counsel.” The judge will review your application and affidavit; and, if it appears that you qualify, he or she will refer your case to the local public defender’s office. Generally, to qualify, your income must fall below the federal poverty level, and your assets must be insufficient to cover the cost of hiring a private attorney. Crucially, however, even if you cannot fully afford to pay for an attorney, the court may order you to “pay [your] assets to the general fund of the State;” and in any case, having a public defender appointed will result In a claim “in an amount equal to the costs of representation” being levied against your assets and your estate unless the judge waives this requirement.

Do You Need a Lawyer for Your South Carolina Criminal Case?

Regardless of these issues, if you have been arrested for a South Carolina crime, do you need a defense lawyer? If you aren’t entitled to a public defender, is it worth hiring a lawyer to fight the charge (or charges) against you?

While many people assume there is nothing they can do to avoid a guilty verdict (or there is nothing they need to do to prove their innocence), the outcome of a criminal case is never predetermined. How you handle your case matters, and there are several steps that an experienced criminal defense lawyer can take to help make sure that you are not unjustly convicted or sentenced. These steps include:

  • Determining if the police have violated your constitutional rights and assessing whether any constitutional violations may provide defenses in your criminal case;
  • Determining what other defenses you have available based on the facts and circumstances leading up to your arrest;
  • Representing you at your bond hearing and first appearance, and making sure that you do not say the wrong things in court;
  • Requesting the state’s evidence, communicating with the prosecutor’s office, and filing motions to try to resolve your case before trial; and,
  • Preparing a comprehensive defense strategy focused on convincing the jury that the prosecution cannot meet its burden of proving your guilt beyond a reasonable doubt.

Facing any criminal charge in South Carolina is a serious matter. Except for minor offenses, most crimes carry the potential for jail time, and this means that in most cases, you will have the right to a court-appointed attorney (if you qualify). No matter how much money you have, no matter how old you are, no matter what you do for work, and no matter whether you are guilty or innocent, you cannot afford to take chances in your criminal case. You need to hire an experienced defense lawyer who can help you achieve the best possible result based on the circumstances at hand.

Schedule a Free Consultation with North Charleston Criminal Defense Attorney Rad S. Deaton

Have you been arrested and charged with a crime in North Charleston? If so, we urge you to contact us immediately. To discuss your case with criminal defense attorney Rad S. Deaton in confidence, call 843-225-5723 or tell us how we can contact you online now.