Litigants in person part 7

We have seen various instances of litigants in civil proceedings causing problems. Litigants in person in the criminal context can be even more damaging. This can be whether they are mitigating on their own behalf, or asking questions.

As a junior barrister I once heard a man seeking to defend himself. I was not paying total attention to what was going on, because this was a hearing going on shortly before one in which I was involved, and so consequently I was looking at my papers but caught the drift as I did so. The man appeared without legal representation and there was an issue as to his mental state and capacity. By the time I started to listen to what was going on, I had lost the thread of exactly how and why it had occurred, but a temporary order was sought for him to undergo psychiatric evaluation. This however arose as a result of a relatively minor offence and so consequently if he had to undergo the treatment (which he would have to if the court thought it appropriate) in practical terms this would make the consequences of his actions rather worse than they would have been had there been no mental issue at all. Of course the parties and the court had the reports and everyone else did not, so I have no idea what those reports said. Whatever they said, it cannot have been in the litigant's interests to be attempting to argue about his own mental capacity. This notwithstanding that he finished his submissions with a flourish and a joke (at least I assume it was intentional, but perhaps not). He described using mental health provisions to seek to detain him as "using a sledgehammer to crack a little nut ". Unfortunately if the laugh was on anyone, it was on it. The judge made the order for him to be detained in a mental hospital to psychiatric evaluation.

The consequences can be severe not just for the litigant but for other litigants. This can happen in civil proceedings where a litigant in person can prejudice the position of fellow litigants with the same interests but in front of a jury it can be even worse. It is important to bear in mind in broad terms that evidence in a case is evidence generally once adduced. There are limits to this (for example in a criminal case if one person makes a confession that he did something together with another person, that confession would not be evidence against the other person, although if the person making the confession actually gave evidence to that effect it would be evidence against them both). What it means however is that people blundering about asking questions can cause damage not merely to themselves and their own defence, but to the defences of other defendants. Let us take the example of two defendants, one represented and one not. The main evidence against both of them is identification evidence. When the evidence is adduced in Chief (the prosecution case) the witness evidence is very shaky and the impression given is that the witness is not clear as to whether he is sure it was the defendants, or if so which one (of course if the jury cannot be sure of guilt against any individual defendant, then that defendant is entitled to an acquittal even if the jury is sure it must have been one or the other but are not sure that they were acting together). If the evidence is really poor then there might be no cross-examination at all. (If you cross examine, then since the prosecution can re-examine on the substance of your questions, it gives them an opportunity to try and improve their case: it is always a tactical question as to whether you are better off asking questions or not). However sometimes the evidence of the witness may be unclear merely because the witness was not sure what to say and since the prosecution cannot suggest the answers (because you cannot "lead" your own witness but have to let them tell their story) the witness may not get all of the evidence out. (For example you can ask your own witness "what was the weather like? " but you cannot ask your own witness "it was raining wasn't it?"). You are allowed to ask leading questions in cross-examination (when asking questions of a witness for another party). That means that a defendant in person who does not know what he is doing can actually end up nailing down the prosecution case not merely against himself but against his fellow defendant. For example if a witness has given the impression that they are not sure, the defendant litigant in person may say " Are you really sure that it was the two of us" and get the answer "yes". Having made things much worse, he might then say something like "why are you so sure" and the witness might then say "well now you come to mention it," and then for the first time indicate the things which made him sure which he had omitted from evidence in chief. That can not only get the litigant in person convicted, but also any fellow defendant. It is frustrating for the lawyer and his client to see their defence destroyed by a defendant litigant in person blundering around. Then again it is not equally frustrating, since the lawyer will not be the one serving a prison sentence.