Why Filing a Faretta Motion and Going Pro Per is a Bad Idea
A Faretta motion is a legal document that a criminal defendant can file with the court to represent himself in a criminal proceeding, either a misdemeanor or felony case.
The motion gets its name from the Supreme Court case Faretta v. California, in which the Court ruled that defendants have the right to waive their right to counsel and represent themselves in a criminal trial.
This right comes from both the Sixth Amendment and the Fourteenth Amendment to the United States Constitution.
In other words, a Faretta motion is a petition criminal defendants file with the court that seeks permission to represent themselves, acting as their own attorney in a criminal proceeding. In the legal industry, this is commonly called “going pro per.”
If the judge grants the motion, the defendant waives the right to counsel and represents themselves in a criminal proceeding. If they decide to deny the motion, the defendant must retain a lawyer or have the court appoint one.
You may waive your right to have a lawyer if you are accused of a crime. To do this, you must do it knowingly, intelligently, and voluntarily. You must request to exercise your right to self-representation promptly.
If you choose to represent yourself in court, it applies at both the trial and appellate levels. However, if you later decide you want a lawyer, you cannot appeal a court ruling later. Our Los Angeles criminal defense attorneys will explain this further below.
How Does a Faretta Motion Hearing Work?
In a Faretta hearing, the judge will hear evidence to determine whether or not a defendant should be allowed to represent themselves in court.
During this hearing, the judge will question the defendant to ensure they understand what it means to waive their right to have an attorney.
The judge will also ensure that the defendant is making this decision willingly and that they know the risks of representing themselves. In other words, a defendant's waiver of legal counsel will only be allowed by the judge if it's made:
- knowingly, and
Constitutional requirements are limited on this issue. The Sixth Amendment does not require the court to inform the defendant of what problems can occur if they choose to represent themselves.
The court does not have to tell the defendant about the right to remain silent. If the defendant asks for a Faretta motion in front of a judge, they say they want to represent themselves in a criminal proceeding.
Again, as noted above, if the judge denies this motion, the defendant must retain an attorney or have one appointed by the court. If a defendant waives their right to counsel, they cannot later appeal a court ruling on the grounds of ineffective assistance of counsel.
Are the Rules the Same for an In Pro Per Defendant?
Yes, all court rules and rules of procedures are the same whether the defendant is represented by counsel or chooses to represent themselves.
A defendant going in pro per and representing themselves is not given any leeway or exceptions regarding the rules and is expected to know them.
The court will not answer legal questions for the defendant and will not treat the defendant differently in any way. The defendant's legal inexperience can lead to several disadvantages in the case.
If a defendant decides to waive their right to counsel and represent themselves, they still have the option to decide later to end their self-representation. If this occurs, they can obtain legal representation by hiring a lawyer or asking the court to appoint a public defender.
Suppose the defendant hires a criminal defense attorney? In that case, the judge will typically grant a Penal Code 1050 PC motion for a continuance so that the new lawyer has reasonable time to prepare a defense.
What are the Disadvantages of Going in Pro Per?
A defendant's lack of legal training can be fatal in attempting to represent themselves in a criminal case. Attorneys undergo several years of legal training and must pass their state's bar exam to be considered for licensing.
Trial attorneys get additional training and experience litigating cases in the courtroom before they are assigned as prosecutors in various courts.
Anyone going against a prosecutor on their own is at a severe disadvantage in both legal education and experience. The court also discourages people from representing themselves in criminal cases.
It is also awkward and difficult for the defendant in a case to defend the case as their lawyer while keeping the jury from judging them in doing so.
If a defendant questions an alleged victim in a case, the jury sees the accused cross-examining the accuser. This can lead to a very negative effect on the juror's opinion of the defendant.
What is a Marsden Motion?
A Marsden motion is a document a defendant files with the court to fire their public defender. This motion is usually brought because:
- the defendant thinks their public defender isn't doing a good job, or
- there is a conflict between them that makes it hard for the defendant to be represented adequately by the public defender.
Please note that this only applies to people who have public defenders and not people who have lawyers they paid for themselves. If someone wants to remove an attorney they have hired, they can fire them and hire a new one.
If the judge agrees to the Marsden motion, the public defender is taken off the case, and the judge appoints a new one. If the judge denies the motion, the public defender stays on as the defendant's lawyer, and the case continues.
If you have been charged with a crime in California, then you need experienced legal representation to have the best chance of avoiding a conviction.
In certain types of crimes, such as domestic violence, a conviction will carry substantial collateral consequences, such as losing your legal right to own or possess a firearm.
Eisner Gorin LLP is located in Los Angeles, California. You can contact our law firm for a case review by phone or using the contact form.