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Indigency Explained

“In all criminal prosecutions, the accused shall enjoy the right…to have the assistance of counsel for his defense.”

This excerpt appears in the United States Constitution under the Sixth Amendment. In legal terms, indigency refers to a person who is unable to pay for legal representation. To ensure that all citizens are fairly represented in court by an attorney, the Sixth Amendment allows for indigency to be a legal reason for having lawyer costs and required legal fees waived. In this case, a public defender will be appointed to defend the accused.

How Do I Know if I Qualify for a Public Defender?

The court will require you to submit financial information such as your income (after taxes), assets, debts and any public assistant payments you may be receiving. Your income cannot exceed 125% of the current Federal Poverty Guideline. Indigency may also be defined by your inability to pay for required fees without depriving yourself and dependents of the necessities for life. This includes shelter, clothing and food.

How Do I Prove Indigency?

In order to avoid paying for required legal fees, such as court filing costs, there may be a statutory requirement for submitting an affidavit declaring indigency. Courts are required to waive fees for indigency involving fundamental constitutional rights, such as rights affecting a marital relationship in a divorce proceeding. Rights that are not considered constitutionally fundamental, such as filing to change a name, do not apply and courts are not required to waive these fees.

What Does Marginal Indigency Mean?

This refers to a person who qualifies to receive the assistance of a public defender but may also be able to afford their own private attorney. If you find yourself in this situation, it’s important to understand the pros and cons of hiring an attorney. For example, if you are appointed a public defender, you do not get to choose your attorney. You will also get limited access to your public defender because they are assigned to many cases at one time. Private attorneys choose to take on as many cases as they want and typically can spend more time on your case.