Self-Represented Litigants Can't Be Denied Right to Object to Witness Testimony

From Beslow v. Jason, decided yesterday by the Virginia Court of Appeals by Judge Daniel Ortiz, joined by Judges Randolph Beales and Vernida Chaney; the underlying dispute was whether to let a stepmother adopt her husband's child, over the other mother's objection:

At trial, both parties testified to their fitness as parents and the interests of the child. On direct examination, the Beslows [the stepmother] asked Jason [the mother] about her relationship with the child. The Beslows objected when Jason testified that the child said the Beslows would not let her talk to Jason anymore.

The trial court overruled the objection because Jason was answering the Beslows' question, then prohibited the Beslows from making objections as non-attorneys. Jason then explained that she was opposed to the petition for adoption, alleging Shamila was abusive. The Beslows again objected to Jason's testimony as hearsay. The trial court overruled the objection, and reminded the Beslows, "I told you a little while ago that because you're not counsel you're not able to object to evidence." Jason later introduced into evidence pictures of herself and the child, a call log showing calls she made to Vernon's cell phone for her weekly telephone visitation, whether the calls were answered or missed, and text messages the child sent her.

The guardian ad litem noted that the child had been successful at school and enjoyed living with the Beslows. The Beslows enrolled the child in multiple activities and tried to help the child regulate her emotions, which were complicated by ADHD and the presentation of autism. Shamila volunteered at the child's school, helped with a field trip, and ensured that the child attended appointments, practices, and school.

The trial court found that Jason had not abandoned the seven-year-old child and consistently sought custody, and there was no evidence that she could not care for the child financially or otherwise. It further found that the Beslows attempted to limit Jason's visitation with the child, but that they provided a suitable home for the child, and the adoption would not affect physical custody. Based on those findings, the trial court ruled that Jason's withholding of her consent to the adoption was not contrary to the best interests of the child, and denied the petition for adoption….

"The right of a party to appear in his own behalf and be heard in the courts is fundamental." Of course, the same standards apply to both represented and pro se parties. A party "who represents himself is no less bound by the rules of procedure and substantive law than a [party] represented by counsel." …

Part of representation, including self-representation, is the ability to present and challenge evidence. A court cannot arbitrarily limit a party's ability to challenge evidence based solely on pro se status.

After the Beslows' attorney withdrew shortly before trial, the Beslows appeared pro se, but the trial court's denial of their ability to object based on their self-representation deprived them of the full ability to challenge evidence. The Beslows twice objected to hearsay testimony during their cross-examination of Jason, and each time, the court admonished them that only attorneys were entitled to object. After that, Jason introduced evidence not previously disclosed during discovery, but the Beslows could not object. By prohibiting objections because of their pro se status and limiting their ability to challenge evidence, the trial court denied the Beslows the full extent of self-representation.

Because pro se litigants can act as counsel in presenting their cases, the trial court erred by prohibiting the Beslows from objecting to evidence at trial….

[D]eprivation of a pro se litigant's right to challenge testimony at trial is a "defect affecting the framework within which the trial proceeds." Even if that deprivation is not a constitutional error, "[e]rror of this magnitude is never harmless." So too here.

On remand, the ultimate result of the Beslows' petition may be the same, but the framework in which this hearing proceeded was one that deprived the Beslows of the full ability to challenge evidence. That prohibition cannot be said to have had but "slight effect" on their self-representation. Thus, despite what may be the non-constitutional nature of the trial court's error, given its pervasive effect on the trial, we cannot say the trial court's prohibition of the Beslows' objections was harmless.

Timothy A. Richard and John P. O'Herron (ThompsonMcMullan, P.C.) represent the parents.

Comments

[John F. Carr]

I wondered if this case came from a low grade court like traffic court where any warm body could be a trial judge. No, the appeal was from a Circuit Court and a judge with almost 40 years of legal experience.

[Bubba Jones]

>40 years of legal experience.

Maybe he's just old and forgetful. Got confused by the client not ordinarily being allowed to object when counsel is present?

[MickeyFitz]

Is there any basis for the trial judge’s ruling on the right to object?

[LawTalkingGuy]

A trial judge does have some leeway in controlling the courtroom and manner of questioning. I think a judge could cut off objections for a line of questioning if the objector kept shouting objection despite there being a ruling and wouldn’t let the witness speak or the questioner question.

But as to saying an unrepresented party doesn’t have a right to object? No. Zero basis for that.

[Soronel Haetir]

Wouldn't that be true for counsel as well, if the objections continued to be baseless?

[LawTalkingGuy]

Yeah. For sure.

[David Nieporent]

Yes, of course. Nobody (well, except the judge) has an unrestricted right to speak in a trial, but the rules are the same for pro se and the lawyers for counseled parties. Was this judge drunk at the time? His (?) ruling is not even a colorable position.

[LawTalkingGuy]

He was probably just super annoyed he had to conduct a trial with two pro se parties and decided to cut the them off on the expectation they wouldn’t appeal or do anything about it. A very bad assumption considering the stakes.

Although I think the task of a judge is a little easier when both sides are pro se. Can guide both sides to get the issue out without seeming to give the uncounseled person and unfair boost or seem like you’re letting them unfairly flail in the face of a lawyer.

[TwelveInchPianist]

This issue has come up before on the blog, so apparently there are other judges who have this idea.

[Soronel Haetir]

What's super-lousy here, I can believe the sheer amount of time the current arrangement has been in place when it finally gets back to a lower court and is heard will cut against changing the arrangement.

[David Nieporent]

By the way, Jason lost custody several years ago to her husband, and proceeded to sue in federal court the judges who ruled against her. (She was pro se. And lost.)

https://storage.courtlistener.com/recap/gov.uscourts.vaed.519053/gov.uscourts.vaed.519053.19.0.pdf

[TheAmazingEmu]

Sounds entirely correct. That being said, it has bigger implications for defendants removed from the courtroom due to misconduct. There are cases where that has happened even when they are pro se, which means the trial effectively proceeds without them.

[Krychek_2]

I was once sitting in a courtroom and heard a judge tell a pro se plaintiff that she does not allow pro se parties to take written discovery.

I get that a lot of pro se parties have nutty theories and procedural screw ups that waste the court's time, but judicial abuse of pro se parties is a real problem. There was a federal judge in Orlando, now deceased, who would not allow pro se plaintiffs to take the case to trial. On the day of trial he would ask the plaintiff, "Are you represented by counsel?" and if the answer was no, he would say, "OK, case dismissed."

[ReaderY]

Why didn’t plaintiffs appeal?

[Krychek_2]

Some did, but here are the practicalities: By the time it's the first day of trial your case is already a year or two old. The Court of Appeals will take another 18 months to two years to reverse it, and the result of all that may simply be that he dismisses it a second time. And in the case of the judge who won't give discovery to pro se parties, depending on what happens with the case it may not be appealable.

The practical reality is that if the judge doesn't like you, either because you're pro se or for some other reason, he can screw you over and there's frequently no recourse.

[ReaderY]

If this case were decided on a harmless error analysis, the trial court would almost certainly have been upheld, I would have done so on different grounds from the ones the trial court used. A fit parent who objects to an adoption basically always wins. Parents have a constitutional right to raise their own children, and this right trumps considerations such as the best interest of the child vis-a-vis a non-parent. Moreover, the right of parents to raise their children is so fundamental that unless there is solid evidence the parent is unfit, it basically doesn’t matter what the would-be adoptors’ evidence is.

Nonetheless, I think the outcome was appropriate. I agree with the appelate court that a right to challenge evidence is a core component the right to present a case, and denying that right systematically represents structural error that renders the trial as a whole fundamentally unfair. Therefore, even though it’s very likely the evidence involved was harmless, structural error analysis was appropriate.