How to File a Marsden Motion

If criminal defendants in California have an appointed attorney who they feel is not best representing their interests, they can file a "Marsden" motion. The right to file this motion is based on the decision of the California Supreme Court in the People v. Marsden case. However, the word "file" is misleading. A defendant doesn't need to file any paperwork; she just needs to speak up clearly in court at any time and request substitution of counsel.

At the point the defendant makes this statement, the judge is required to hold a hearing in the judge's chambers to determine whether counsel should be substituted. The defendant must have legitimate legal grounds. The decision whether to substitute counsel is within the judge's discretion.

To win on a Marsden motion, the defendant must show that her attorney is providing inadequate representation, or that they have an irreconcilable conflict that would result in inadequate representation. This is a legal standard. It isn't enough that the defendant disagrees with her attorney's trial tactics, or that the two of them don't get along personally.

Criminal defendants have the right to counsel. The reasoning behind the Marsden motion is that appointed counsel may be so negligent that the defendant effectively doesn't have counsel at all. The defendant has the burden of proving that her right to counsel would be "substantially impaired" by continuing to be represented by her current attorney.

There is significant judicial discretion in whether to grant or deny a Marsden motion. A judge typically won't grant a Marsden motion simply because the attorney won't do certain things the defendant wants her to do, or because of some vague feeling on the part of the defendant that her attorney doesn't have her best interests at heart.

Read More: Format for Writing a Legal Motion

A criminal defendant can make a Marsden motion at any time during the criminal trial. There are no forms to be filed or paperwork to be completed. All the defendant has to do is speak up and say that he wants a new attorney.

The only legal requirement is that he has to clearly indicate to the judge that he wants his attorney to be replaced with a different attorney.

It's worth noting that a Marsden motion applies only to appointed counsel. If the defendant hired an attorney independently, he can fire that attorney at any time, and for any reason.

As soon as the defendant makes her desires known, the judge must hold a hearing in chambers. This hearing typically involves only the judge, the defendant and the defendant's current counsel.

The judge will ask the defendant why he wants a new attorney, and the defendant will have an opportunity to explain his reasons. The judge typically will ask the current attorney to provide his side of the story.

After hearing from both sides, the judge will make his ruling. This ruling is based on a fair and objective assessment of the case at hand, not the judge's personal opinions about the appointed attorney.

During this hearing, a court reporter will be present. For confidentiality purposes, the record of this hearing may be sealed. If any paperwork was filed in support of the motion, it will be a matter of public record.