For all the lawyers here, how do the courts handle a case where a defendant is representing himself in court and also wishes to testify in his defense?
Does he just recite a statement (and then answer cross-examination questions), or does he prepare a list of questions and hand them to someone in the court to have them asked? I’m pretty sure that he doesn’t keep running between the witness stand and his table, as is often done in comedy.
Kevin Allegood,
“At least one could get something through Trotsky’s skull.”
I am not a lawyer but I was a legal assistant on a case in which the plaintiff finally ended up appearing pro se because he was a nut and would fire his counsel, or they would quit.
He did ask and answer his own questions, and it was a bit farcical: Q. “Dr. Kearns, what is the blah blah blah…” A. “Well, Bob…”
At one point the defendant’s team was forced to object on the grounds that he was “leading the witness.”
I should mention in case anyone thinks this was a small matter that this was the guy who sued basically every car manufacturer in the world for infringement of his intermittent wiper patent. He has actually won most of the cases that have come to trial so far.
I’m not a lawyer, but I do know that the court will expect pro se “clients” to know what they are doing (procedures, etc.) Acting out of order or improper procedure will weaken your case dramatically!
Also, be aware that if your opponent has an attorney, that attorney will manhandle you like a pup because the attorney knows how to play the game, so to speak! For instance, you won’t know what is objectionable or not! And, the judge ain’t there to prompt you!
Eden, is this the guy in Gaithersburg, MD who sued Ford successfully a few years back? They’ve had writeups of him in the paper and I never picked up that he was acting as his own lawyer.
Mojo, the guy you refer to invented the intermittant wipers for cars. The idea was stolen by the auto industry, but he went broke in the process suing each manufacturer.
Mojo, yes, Kearns sued not only Ford but also Chrysler, GM and many others for the same “infringement.”
As far as I know, only the Ford and Chrysler cases have gone to trial to date. I worked for Pillsbury, Madison & Sutro, who represented Chrysler at the time. Ford lost the first case mostly (it’s believed) on the fact that the differences between Ford’s device and Kearns were presented confusingly to a layman jury, and the universal tendency of juries to find for a single plaintiff against a large corporation. It was surprising that Ford lost the case, but it set a precedent for ensuing cases. We also lost, I think for many of the same reasons.
The problem with his case is that virtually all auto manufacturers were working on an intermittent wiper at the same time. This can be proven, as many started work before Kearns even had a patent. In this case, Kearns did hold a patent on his particular circuit, but other companies, working from the same prior art as Kearns, developed similar circuits all around the same time. This is perfectly legal. Kearns’ case arises from his story of having tried to sell his invention to manufacturers and being turned down. He claims that while he was in selling the device, spies were out peeking at his “red box” (located in his car) and copying his ideas. While this is ludicrous, no one can really prove it didn’t happen. Also, a lot of Kearns’ personal problems (paranoia, among others) that might have biased the jury were disallowed.
While Kearns certainly started with representation, he did not end up with any in the Chrysler case. Kearns had a tendency to undermine his own case despite his counsel’s warnings. He ended up firing his counsel (who was truly fed up anyway) and advertising in a national newspaper. He did not find new counsel and did appear pro se.
Jinx, he did not go broke from this process as he has been awarded large sums in both cases.
In a recent small claims case in Wisconsin (in which I was the plaintiff) one of the defendants acted pro se. The judge advised him at the beginning of the trial that he would be held to the same standards of conduct and knowledge as any attorney. When he testified, he was sworn in and gave a narrative statement, then responded to questions from my attorney and the attorney for the other defendant. After he lost on my claim and had his counter-claim dismissed for lack of evidence, he whined to the judge “I have evidence with me, I just didn’t know I’d need it.” The judge told him that he had been advised at the start of the trial of the standard to which he’d be held and hit him in the neck with the gavel. (OK not really)
It has been my experience that in rare cases where parties are acting pro se (and on even rarer occassions when cousel is present) a judge will ask if there is objection to a question. The judge does this, I believe, to fend off later appeals on the grounds of inadmissible evidence or incompetent representation.
This is one of the many problems associated with being a pro se litigant.
If everyone’s agreeable, the testimony can be entered in narrative fashion. The litigant, as a witness, simply tells his own story.
This presents a problem for opposing counsel, however. In a normal question-and-answer format, if a problem question comes up, opposing counsel can object before it elicits an answer. (“What did your neighbor tell you about the murder, Mrs. Johnson?” This probably calls for hearsay testimony, and normally an objection to the question would be sustained.) But in narrative testimony, the litigant can simply blurt out, “And then my neighbor told me that Carl did it!” leaving opposing counsel no room to object in time.
There are a few ways around this – the pro se litigant may agree ahead of time with opposing counsel what the substance of his testimony will be. Knowing that there won’t be anything objectionable said, he may agree to let it go in that way.
I’ve also seen the self-question-and-answer format. It’s goofy, but it satisfies everyone’s concerns.
But not nearly as goofy as running back and forth between the witness stand and the defendant’s table would be!
Anyway, thanks for the answers from everyone so far. I figured the courts would have some sort of procedure for this situation. To reassure the people who appeared to think I was going to be representing myself, my only reason for asking was general interest. If I was going to be representing myself for anything more than a traffic ticket, I’d be going through a stack of legal books.
BTW, I don’t actually belive the bit Eden said about opposing council objecting with ‘leading the witness’ to someone questioning themself, and I don’t know if I could resist the temptation to ask the judge to let me treat myself as a hostile witness after such an event.
Kevin Allegood,
“At least one could get something through Trotsky’s skull.”
Ribo: it’s in the trial transcripts if you don’t believe me…but there are at least forty three-inch binders of transcript, so you’ll probably have to take my word for it!
A really good example of how ridiculous pro se representation can be was the guy who shot up the train on Long Island and then represented himself. He would cross-examine witnesses and it would sound like this:
PERP: And then what happened?
WITNESS: Then you shot me.
PERP: How did you know it was the defendant who shot you?
WITNESS: Because I saw you shoot me.
PERP: Couldn’t it have been someone else?
WITNESS: No; it was you.
Surreal. As usual for pro se guys, he made a total hash of his defense. Less amusingly, he also re-traumatized many of the victims, who were forced to face him and deal with him in court when they were called as witnesses.
In my jurisdiction, the judge allows the pro se party to offer a narrative statement and then he or she must submit to cross-examination by opposing counsel. Though the narrative does not follow a question and answer format, for the obvious reason that it’s silly for a person to question his or herself, it is subject to all the objections available to elicted testimony, such as hearsay. So a pro se litigant doesn’t just get to say whatever he or she wants; his or her testimony must be competent and relevant, just like that of any other witness.
What’s to stop me, pro se, from getting on the stand and blurting out some hooribly prejudicial and completely inadmissible information in my narrative? Undoubtedly, an objection to that portion would be sustained, but… “you can’t unring the bell.”
Jodi - you remind me of the funny SNL skit during the whole Collin Ferguson trial a few years ago. Tim Meadows was playing the defendent - during cross-examination he would ask witnesses to point out the person in the courtroom who shot them that day. When they pointed at him he would duck and then smile and point out to the court that the witness pointed to the man sitting directly behind him. It obviously didn’t happen that way but it was funny as hell to watch.
Off topic, but we were recently sued by a man who came into our store to beat up his girlfriend. An employee kicked him out. SO the perp got a gun came in the back door and shot our employee 3-4 times, then walked up to the disabled man and shot him in the back of the head.
His case? he alleged that we should have stopped our employee from “provoking him.”
He was pro se and alleged that he was shooting away from our employee but that the bullets all ricocheted into our employee.
It was dismissed with prejudice. Another prisoner pro se thwarted by a wise judge.
RICK – You probably know the answer to that as well as I. Of cours, the problem of “unringing the bell” is an old one, and the remedy, if the “blurtation” is truly prejudicial and objectionable, is a mistrial. In the (few) times I’ve dealt with pro se plaintiffs in a trial setting, the judge has very frankly warned the plaintiff that there are things that cannot be discussed (such as insurance), and that mention of those verboten topics can lead to having to do the whole trial over again. It really has never been an issue, maybe because I deal solely with civil litigation, not criminal. I should clarify, also, that I deal with pro se plaintiffs on a fairly regular basis, but their cases rarely make it to trial. Usually the claims are meritless and I just get them dismissed.
And the prejudice issue is much less of a factor in a bench trial. In my experience, judges usually decide that they are capable of disregarding any prejudicial testimony.
Sui juris refers to having the right and capacity to act in one’s own behalf. A minor child is not sui juris, and for litigation must act through a guardian <ad litem*, for example.
Pro se refers to actually acting on one’s own behalf. You may not proceed pro se unless you are sui juris.
