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Preparing Your Faretta Motion

Justice Scale

Getting a judge to allow you to represent yourself.


When you want to represent yourself, you have to make a formal request to the judge, known as a "Faretta motion," which stems from a United States Supreme Court case, Faretta v. California (1975) 422 U.S. 806. That case confirms that under the Sixth and Fourteenth Amendments to the U.S. Constitution, you can waive your right to a lawyer and represent yourself. A judge needs to first determine that your "waiver" to have a lawyer represent you is "knowing, intelligent, and voluntary." In other words, the court will want to see that you're not completely nuts and that you understand that you don't have to represent yourself, that you have other options. They're really going to try to convince you not to do it.


The only relevant question for the judge to ask you is whether you have the mental capacity to make a knowing and intelligent waiver. The judge is not supposed to ask you about your technical knowledge of the law or ability to litigate a case. If the judge does that, you can voice your objection and cite the Faretta case as well as People v. Nauton (1994) 29 Cal.App.4th 976. That'll show the judge you're serious.


What if there is an issue about mental competence?

You can be denied the right to self-representation if your mental competence comes into question. (Indiana v. Edwards (2008) 554 U.S. 164, 177; People v. Johnson (2012) 53 Cal.4th 519, 528.) But you shouldn't be denied the right to self-representation simply for having a history of mental illness. (People v. Clark (1990) Cal.3d 583, 618.) The standard for denying self-representation is whether you suffer from a severe mental illness to the point where you cannot carry out the basic tasks needed to present the defense without the help of counsel. (People v. Johnson, supra, 53 Cal.4th at p. 530.) 


What will the judge say or ask?


There are no set questions, but generally judges will ask you the following:


  • What's your education and familiarity with legal procedures?

  • Are you aware that you can have a public defender appointed to you at no cost?

  • Do you understand the nature of the proceedings and the possible outcome?

  • Do you understand that the right to self-representation may be terminated for misbehavior or disruption of trial?


Judges aren't required to advise you of specific dangers that may flow from self-representation or advise you about the privilege against compelled self-incrimination. But, a judge should at least advise you of the maximum punishment that could be imposed if you are found guilty of the offenses charged. (People v. Jackio (2015) 236 Cal.App.4th 445, 454.)


Ultimately, judges will advise you the following:

  • that you are conducting your defense at your own risk;

  • that you will have to abide by the same rules as lawyers and will receive no help from the judge;

  • that the prosecution will be represented by experienced, professional counsel who will have the advantage of skill, training, and ability; and

  • that you will have no special library privileges nor a staff of investigators.


In sum, the judge will probably try to talk you out of representing yourself. And for good reason. If you are trying to represent yourself completely on your own, it is a reckless (or at least negligent) thing to do if you have no legal background. BUT, if you are being consulted by a lawyer on the side, then it could be a good way to save thousands.

When do you make a Faretta motion?

Most do so at the arraignment -- the first court date. But you certainly can request it at a later date. However, if you are going to request to represent yourself, you must do so in a timely fashion.


Here's a situation that can occur: You're pissed at your lawyer and how he or she is handling the case. On the eve of trial, or even worse in the middle of trial, you jump and make a Faretta motion requesting to represent yourself. Will a judge grant your request? The chances are very slim.


What if you want your current lawyer kicked off the case but you're not certain about actually representing yourself?

A judge shouldn't grant a Faretta if you're wishy-washy at all about self-representation. To represent yourself, the request needs to be unequivocally clear. If your request is insincere or made in an emotional outburst, it will be denied. (People v. Marshall (1997) 15 Cal.4th 1, 21.)  For example, in People v. Boyce (2014) 59 Cal.4th 672, 701, the judge denied a Faretta motion because the defendant simply wanted his lawyer removed from the case, but stated repeatedly he didn't want to represent himself.


Can your request be denied if you fail to follow courtroom protocol?

Yes, the judge can deny your request for self-representation if you're unable or unwilling "to abide by rules of procedure and courtroom protocol." (McKaskle v. Wiggins (1984) 465 U.S. 168, 173.)


What if you can't communicate coherently?

If you cannot coherently communicate, a judge could deny your right to self-representation. For example, in People v. Watkins (1992) 6 Cal.App.4th 595, a judge denied the request because the defendant had a severe speech impediment.


However, not being able to speak English fluently is NOT a valid ground to deny a Faretta motion. The court is required to appoint an interpreter.


Can a judge decide you need a lawyer midway through a case?

The right of self-representation is not absolute. A judge has the power to suspend your self-representation and appoint a lawyer in the event your in-court conduct is disruptive to the process of justice. Your right to self-representation may also be terminated for out-of-court misconduct that seriously threatens the core integrity of the trial.


Can you change your mind and request a lawyer midway through your case?

Yes, the court should ordinarily appoint counsel (or permit you to retain counsel) and grant a continuance to allow adequate time for the new attorney to prepare the defense. (People v. McKenzie (1983) 34 Cal.3d 616, 629.) However, if you're in the middle of trial, odds are a judge won't take kindly to your request. But, technically, a judge must weigh several factors and actually render an official decision rather than just yell at you. (See People v. Gallego (1990) 52 Cal.3d 115, 163.)

So there you have it...lots of info about Faretta. But if you've read this far, and feel you understand enough what I've discussed, then you should not have any problem convincing a judge you're good to go as a pro per.

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