Marsden Motion: Intro and Overview

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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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. (Note: This is not a motion to represent yourself in court, or 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.

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 or she is guilty;
• Unsubstantiated lack of confidence in the attorney's abilities; or
• Unsubstantiated belief that the attorney lied to the defendant.

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