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Marsden Motion  

Last Updated: May 26, 2016 URL: http://calcountylawlib.libguides.com/content.php?pid=686164 Print Guide RSS UpdatesEmail Alerts

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Introduction

 

This guide provides information and resources for you to use in filing a Marsden Motion.

This guide is not intended as a substitute for doing your own research.

 

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What is a Marsden Motion?

A Marsden Motion is a request by a criminal defendant to fire his or her appointed public defender and acquire new representation. The defendant must show that the appointed attorney is not providing adequate representation, or the attorney has a conflict with the defendant. The right to file the motion is based on the case People v. Marsden.

You may file a Marsden motion if the following apply:

  • You have an appointed attorney (i.e., a public defender). If you hired your attorney, you may generally discharge him or her at any time.
  • You want to substitute your attorney for someone else. This is not a motion to represent yourself in court. That is referred to as a Faretta motion.
  • Your attorney is not providing adequate representation, OR you and your attorney have irreconcilable differences which will likely result in ineffective representation.
  • You are filing this motion to substitute your own attorney. Third parties may not file Marsden motions for someone else.
 

Grounds for Substitution

The decision to substitute counsel is within the discretion of the judge. You must show that your attorney is not providing adequate representation, OR that you and your attorney have an irreconcilable conflict that will result in ineffective assistance of counsel.

Generally, the following do NOT require substitution of counsel, unless there are other issues with the attorney-client relationship:

  • Disagreement about trial tactics or the defendant's right to testify;
  • Refusal of defendant to cooperate, or not making a good faith effort to resolve disagreement;
  • Representation by different attorneys at different stages of the proceedings;
  • Minimal communication from the attorney;
  • Recommendation from the attorney that the defendant accept a plea bargain;
  • Setting up trial dates without first checking in with the defendant;
  • Vague complaints that the defendant does not relate to the attorney;
  • Dissatisfaction with the attorney's representation in prior cases;
  • Defendant's belief that the attorney thinks he is guilty;
  • Unsubstantiated lack of confidence in the attorney's abilities; or
  • Unsubstantiated belief that the attorney lied to the defendant.

 

San Diego Law Library

619-531-3900

The Law Library has four branches in San Diego County with resources to assist you with your motion.

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