A Faretta motion is a petition that a defendant files with the court seeking permission to represent him or herself (to act as his or her own attorney) in a criminal proceeding. This is commonly referred to as going “pro per.”
The name of the motion comes from a Supreme Court case, Faretta v. California. And, the motion can be filed as part of either
- misdemeanor or
- felony cases.
Please note that a defendant’s right to self-representation applies to both the trial and appellant portion of a criminal case.
A Faretta hearing is when the judge rules on the defendant’s motion to go pro per. If the motion is granted, the defendant waives the right to counsel and represents himself or herself in a criminal proceeding. If the judge denies the motion, then the defendant must hire an attorney or have the court appoint one.
Prior to granting a motion, a judge must ensure that the defendant is acting:
- intelligently, and
- with awareness of the dangers of self-representation.
Note that while a defendant in California may represent himself, it is not typically a wise idea. The better option is for an accused to hire an experienced criminal defense attorney.
Also note that a Faretta motion is different than a Marsden motion. The latter is a motion that a defendant brings for the purpose of firing his court-appointed attorney.
Our California criminal defense attorneys will highlight the following in this article:
- 1. What is a Faretta motion?
- 2. What happens at a Faretta hearing?
- 3. What if a defendant later decides that he wants a lawyer?
- 4. Does it make sense for a defendant to represent himself?
- 5. Is a Faretta motion the same thing as a Marsden motion?
1. What is a Faretta motion?
A Faretta motion is a legal document that a criminal defendant files with the court for the purpose of representing himself in a criminal proceeding.
The name of the motion comes from a Supreme Court case, Faretta v. California. In that case, the court ruled that a criminal defendant has a constitutional right to waive his right to counsel and represent himself in a criminal matter.1
Note that an accused’s waiver of counsel is only allowed if it is made:
- intelligently, and
A defendant’s right to self-representation applies at both the trial and appellate phases of a criminal proceeding. But, note that if a defendant waives his right to counsel, he cannot later appeal a court ruling on the grounds of ineffective assistance of counsel.2
An accused must request to exercise his right to self-representation in a “timely” fashion.3
2. What happens at a Faretta hearing?
A Faretta hearing is when the judge hears evidence concerning the Faretta motion and decides whether or not to allow the defendant to represent him or herself pro per.
During the hearing, the judge will question the defendant to decide whether he is mentally competent to waive his right to counsel. The judge will also ensure that the accused is making the waiver of counsel:
- voluntarily, and
- with awareness of the general dangers of self-representation.
But, note that the Sixth Amendment does not require the court to alert the defendant as to the specific problems often associated with self-representation.4
The court also does not have to inform the defendant about the privilege against compelled self-incrimination.5
At the end of the hearing, if the judge grants the Faretta motion, a defendant waives his right to counsel and represents himself in a criminal proceeding. If the judge denies the motion, then the defendant must hire an attorney or have the court appoint one.
3. What if a defendant later decides that he wants a lawyer?
If a defendant decides to waive his right to counsel and represent himself, he can later decide to end his self-representation.
In this event, the accused requests an attorney. He can either hire a lawyer or the court can appoint a public defender.
If the defendant does retain a criminal defense attorney, the judge typically grants a continuance so that the new lawyer has reasonable time to prepare a defense.
4. Does it make sense for a defendant to represent himself?
The only time it really makes sense for an accused to represent himself in a criminal proceeding is when he faces an infraction charge (such as a minor traffic violation).
When the charge is for a California felony or a misdemeanor, however, a defendant should think twice before representing himself. Even a misdemeanor with no possible jail time can leave a person with a criminal record.
And in certain cases – including California DUI or domestic violence charges – a criminal record has serious collateral consequences. A person could face everything from higher insurance costs to the loss of his California gun rights and the right to spousal support to being denied the job that he wants.
An experienced California criminal defense attorney can help an accused understand and avoid the consequences of a criminal conviction that might not be apparent at first glance.
5. Is a Faretta motion the same thing as a Marsden motion?
A Faretta motion is not the same thing as a Marsden motion.
A Marsden motion is a legal document, brought by a defendant and filed with the court, for the purpose of firing a defendant’s court-appointed attorney (usually a public defender).
The name of the motion comes from a real California court case, People v. Marsden.6
A defendant typically brings the motion because he wants to fire his public defender for one of the following reasons:
- inadequate or ineffective assistance of counsel,
- legal malpractice, or
- there is a conflict between the attorney and defendant that substantially interferes with the lawyer’s representation.
Please note that a Marsden motion is the only way by which a defendant in a California criminal case can fire his court-appointed lawyer.
Please also note this motion only applies with public defenders. If a defendant is represented by a private lawyer, then the party can simply fire the attorney at any time and hire a new one.
If the judge grants the Marsden motion, the public defender is removed from the case and the judge will appoint a new one.
If the judge denies the motion, then the public defender remains as the defendant’s lawyer.
California courts have ruled that a public defender cannot be removed for the following reasons:
- the attorney did not make certain arguments at a prior motion7, or
- the lawyer did not bring certain motions that the defendant wanted to be brought before the court8.