3

If a defendant in a criminal case testifies on the stand, then they must submit to cross examination, which is not good for them.

However, if a defendant is conducting his case pro se, then can he make statements of fact during opening and closing arguments and thereby avoid cross examination of those facts or statements. Will a judge try to prevent this?

For example, imagine a defendant is charged with vehicular manslaughter for running over a pedestrian. The defendant conducts his own defense and in his closing arguments says, "The man ran in front of my car, there was no way to stop in time" and this fact has not been introduced to the case previously. Will the judge in such a case try to stop the defendant from making such a statement in his closing argument?

3

The general rule is that in the opening statement, the lawyer may describe what he expects the evidence and testimony to show:

We will present Mr Smith, who will tell you that he saw the defendant miles away at the time of the crime

But cannot make statements of fact as such. I don't see why this rule would be different for a pro se defendant.

In a closing argument, as i understand the rule, the lawyer may and often will say things like "As witness X testified, there was no time to stop" but is not supposed to introduce new alleged facts not supported by the evidence. However, in a closing, a lawyer can and often does draw conclusions from facts supported by testimony. "My client was proved to have been in the next town 20 minutes earleri, so obviously he could not have committed the crime."

Again, i don't see any reason why these rules would be different for someone acting pro se.

  • and in closing . . . ? – George White Jul 10 at 23:17
  • @George I have added a section on closings to my answer. – David Siegel Jul 11 at 13:15
  • While I think that this answer is technically correct, as a caveat to it, it is a practical reality that judges tend to be as lenient with regard to technical court rules as they feel that they can be in good faith when dealing with a pro se party and will frequently let a pro se party get away with rule violations that a judge would summarily shut down a lawyer for committing or trying to commit. It is unlikely to be overturned on appeal for doing so, either because the appellate court thinks it was not an abuse of discretion to do so, or because any error was harmless. – ohwilleke Jul 11 at 23:44
0

My understanding is that you can make statements of fact as a pro se defendant, but the judge can choose to ignore those statements; however, the judge cannot use those statements against a pro se defendant as inculpatory evidence or admissions of guilt.

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    The question is mostly about jury trials. In other words , I want to know if the judge will try to interfere with a pro se defendant making statements of fact to a jury during opening and closing arguments. – Cicero Jan 11 at 13:32
  • I don't know if the judge would actually instruct the jury to ignore statements of fact from opening statements, but a normal jury won't take anything you say in your opening as a proven fact. They will expect you to prove or establish reasonable doubt in cross examination. Also whether the man ran in front of your car or not may not be a defense depending on the text of the law used against you. – pboss3010 Jan 11 at 15:23
  • @Cicero I agree that this is really only relevant in jury trials as a judge can always state in a ruling that he ignored improper testimony in opening and closing, and the judge is indeed presumed to have done so. – ohwilleke Jul 11 at 23:49
  • @Cicero Normally a judge wouldn't sua sponte (i.e. without the other side objecting) interrupt an opening or closing statement to a jury. In a case where there is no objection from the other side, a violation of a rule that is not objected to is only considered on appeal if it is plain error. Very few lawyers are in the habit of objecting to an opening argument and not many are in the habit of objecting to a closing argument. Thus the fact that a party appeared to testify in opening or closing is usually ignored. If there's an objection, a curative instruction and a warning would be typical. – ohwilleke Jul 12 at 0:16

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