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.