A Faretta motion is a petition you file with the court seeking permission to represent yourself (to act as your own attorney) in a felony or misdemeanor criminal proceeding. This is commonly referred to as going “pro per.”
Here are four key things to know:
- Your right to self-representation applies to both the trial and appellant portion of a criminal case.
- Prior to granting a Faretta motion, a judge must ensure that you are acting knowingly, intelligently, and with awareness of the dangers of self-representation.
- If the judge denies the motion, then you must hire an attorney or have the court appoint one.
- Note that while you may represent yourself, it is not typically a wise idea.
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 I later decide that I want a lawyer?
- 4. Does it make sense to represent myself?
- 5. Is a Faretta motion the same thing as a Marsden motion?
A judge presides over a Faretta motion and decides whether to allow defendants to represent themselves in pro per.
1. What is a Faretta motion?
A Faretta motion is a legal document that you file with the court for the purpose of representing yourself 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 their right to counsel and represent themself in a criminal matter.1
This right comes from both the Sixth Amendment and the Fourteenth Amendment to the United States Constitution.
Note that your waiver of counsel is only allowed if it is made:
- knowingly,
- intelligently, and
- voluntarily.
Your right to self-representation applies at both the trial and appellate phases of a criminal proceeding. Note that if you waive your right to counsel, you cannot later appeal a court ruling on the grounds of ineffective assistance of counsel.2
You must request to exercise your 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 you to represent yourself pro per.
During the hearing, the judge will question you to decide whether you are mentally competent to waive your right to counsel. The judge will also ensure that you are making the waiver of counsel:
- knowingly,
- intelligently,
- voluntarily, and
- with awareness of the general dangers of self-representation.
Note that the Sixth Amendment does not require the court to alert you as to the specific problems often associated with self-representation.4
The court also does not have to inform you about the privilege against compelled self-incrimination (the right to remain silent).5
At the end of the hearing, if the judge grants the Faretta motion, you waive your right to counsel and represent yourself in a criminal proceeding. If the judge denies the motion, then you must hire an attorney or have the court appoint one.
Defendants usually get much better case results when they have an experienced attorney advocating for their best interests.
3. What if I later decide that I want a lawyer?
If you decide to waive your right to counsel and represent yourself, you can later decide to end your self-representation by hiring a lawyer or requesting a public defender.
If you do retain a criminal defense attorney, the judge usually grants a 1050 PC continuance to give your new attorney reasonable time to craft a defense.
From our experience coming aboard cases where our clients initially tried to represent themselves, we strongly advise anyone who has been cited or arrested to hire an attorney right away and not wait. You may unknowingly make mistakes or miss deadlines that can be difficult to undo even if you retain private counsel later on.
4. Does it make sense to represent myself?
In our experience, the only time it really makes sense to represent yourself in a criminal proceeding is when you face an infraction charge (such as a minor traffic violation). The worse-case scenario is usually just a small monetary penalty.
When the charge is for a California felony or a misdemeanor, however, you may be at a significant disadvantage by representing yourself. Even a misdemeanor with no possible jail time can leave you with a criminal record.
In certain cases – including California DUI or domestic violence charges – a criminal record has serious collateral consequences. You could face everything from higher insurance costs and the loss of your California gun rights to being denied the job that you want.
Furthermore, court rules and procedures are very confusing for non-lawyers with no legal training and who have not passed a bar exam. If you proceed pro per, the judge will treat you just like a lawyer: They cannot give you help or legal advice, and they do not let you “cut corners” or give you special treatment just because you are unrepresented.
We have witnessed trials where defendants represented themselves, and it was clear that the jury judged them badly for it. It is a tortuous sight watching unskilled defendants try to cross-examine witnesses because they are constantly fielding objections by prosecutors for violating basic rules of evidence.
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 you and filed with the court, for the purpose of firing your court-appointed attorney (usually a public defender).
The name of the motion comes from a real California court case, People v. Marsden.6 You typically bring the motion because you want to fire your 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 you that substantially interferes with the lawyer’s representation.
A Marsden motion is the only way in a California criminal case you can fire your court-appointed lawyer, and this motion only applies to public defenders. If you are represented by a private lawyer, then you 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 your lawyer.
California courts have ruled that a public defender cannot be removed for the following reasons:
- the lawyer did not make certain arguments at a prior motion7, or
- the lawyer did not bring certain motions that you wanted to present before the court.8
Additional reading
Also see our related articles on:
- Franks motions – a method for challenging a search warrant
- Serna motions – motions to dismiss for lack of speedy prosecution
- Corpus Delicti rule – the legal principle that convictions cannot occur without sufficient evidence a crime occurred