Questioning Oneself: Direct Examination of a Self-Represented Defendant

I was reading a WRAL article about the District Attorney wife-hiring trial taking place in Raleigh when the following passage caught my attention: “Superior Court Judge Paul Ridgeway said that, if [former District Attorney] Wallace Bradsher testifies, he cannot simply deliver a monologue from the witness stand and must pose questions to himself to give prosecutors a chance to object to potential testimony.” I hadn’t previously considered how testimony from a self-represented defendant would work. I looked into it, and this post summarizes what I learned.

A judge may require the defendant to use a question-and-answer format. Every appellate case I could find affirmed a trial judge’s authority to require a defendant to testify in question and answer format. The most-cited case is United States v. Nivica, 887 F.2d 1110 (1st Cir. 1989), where the trial judge told a defendant that if he chose to represent himself and to testify, “you have to ask yourself questions. . . . You have to say, Mr. Wellington, what is your name. And then you say my name is Mark Wellington. . . . You cannot get on the stand and simply narrate your story.” The reviewing court noted that this procedure was “cumbersome,” but not so “unwieldy that it constructively deprived [the defendant] of . . . his right to testify in his own defense.” See also State v. Curley, 2016 WL 2596404 (Super. Ct. N.J. App. Div. May 6, 2016) (unpublished) (collecting cases; noting that the “[d]efendant has not cited any reported cases precluding a trial court from compelling a pro se litigant to testify in the question-and-answer format”; finding “no abuse of discretion in the trial court’s application of this method of examination”; and finding no prejudice to the defendant’s “presentation of his defense”).

A question-and-answer format gives the prosecution an opportunity to object to improper testimony before it comes in. Judges who require defendants to testify in this manner often say that it is necessary to give the prosecution an opportunity to object to improper testimony before the defendant gives it. See United States v. Beckton, 740 F.3d 303 (4th Cir. 2014) (trial judge determined that a self-represented defendant “would not be permitted to present narrative testimony. Instead, like all other witnesses, [the defendant] would have to proceed in question-answer form so opposing counsel could object to a question before it was answered”; this was “eminently reasonable” and not an abuse of discretion).

Alternatively, a judge could allow narrative testimony. The fact that a judge may require the defendant to employ a question-and-answer format does not mean that the judge must do so. Alternatively, a judge could allow the defendant to testify in the narrative. See Robert E. Larsen, Navigating the Federal Trial § 3:23 (June 2018 update) (collecting cases; observing that “[a] request to narrate is sometimes made in criminal cases when an accused, proceeding pro se, wants to take the stand and tell the jury his or her side of the story”; and concluding that “[t]he decision whether to allow a pro se defendant to narrate on direct examination is left to the sound discretion of the trial judge”).

A question for readers. I’m curious about which practice is more common: allowing narrative testimony or requiring questions and answers. Here’s a poll for anyone who has been part of, or observed, at least one trial in which a self-represented defendant testified:

In my experience, the more common practice is:

View Results

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5 thoughts on “Questioning Oneself: Direct Examination of a Self-Represented Defendant”

  1. While I voted that pro se defendants were usually, actually always, allowed to testify by narration, my experience is soley based on District Court cases. I’ve never watched a pro se defendant in Superior Court.

    • ^^^^ This. A DC judge can sustain an objection and strike the testimony when the judge is the fact-finder, so the narrative style is workable there. I had never thought about this issue before, though. I can see how the narrative style would be problematic in Superior Court. Very interesting!


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