Can a pro se plaintiff call the defendant as a witness and compel testimony in a civil suit?

Question

I have a court case coming up in Maryland District Court. It is a landlord-tenant dispute; we are pro se plaintiffs and the defendants (husband and wife, both landlords to the house I lived at) will be represented by an attorney. There is another plaintiff in addition to myself, my former roommate.

The co-plaintiff and I would like to use direct and cross examination, however we are a bit confused on how to proceed.

Can we call the defendants as witnesses so we may cross examine them during the case in chief? Would we call the defendant as a witness before the case begins? Is doing this known as "compelling testimony" and is this even allowed if the defendants have a lawyer?

Can I direct examine my co-plaintiff?

I have read online it could be advantageous to perform the cross examination before the direct examination. Is this allowed? If so, does this mean I can ask the defendant questions before I ask the co-plaintiff questions?

I understand there are multiple sets of rules in regards to civil procedure, such as federal, state and even local.

Answer 1

Yes, you may call a defendant as a witness and compel the defendant to testify in a civil case.

If you need this testimony to prove your case, you should have the clerk issue a subpoena for trial to the defendant and have that subpoena personally served by a process server upon that defendant (sometimes a witness fee, a mileage allowance, and a copy of the relevant statute must also be included in the package). There should be a standard court form available to do this. The subpoena to appear and testify at trial must be delivered to the defendant by the process server a certain amount of time in advance (usually two days, but court rules vary).

Also, when you call a defendant as a witness you may generally examine the witness with leading questions, which is something that you are not usually allowed to do with witnesses that you call in your own case.

Forcing a defendant to testify to the indisputable facts is a good way to meet your burden of proof towards establishing those facts. But, when you call a defendant as a witness, you should limit your questions to those you know the answer to and can ideally prove with other evidence if the defendant lies. Don't try to tell the entire story of the case with the defendant, just the undisputed facts.

The one narrow exception to this would be a criminal contempt of court proceeding (i.e. one seeking the remedy of throwing the offending party in jail where there is no way to obtain relief by taking the action requested) prosecuted by a party within a civil case, to which 5th Amendment protections would apply. But, this would not apply to the kind of case described in the original post.

Answer 2

I don't know the rules in Maryland, but generally speaking, a plaintiff may call the defendant as a witness, and vice versa. The fact that either side has lawyers has no bearing on this. Further, each side is generally permitted to choose the order in which it calls witnesses, so a plaintiff could call the defendant and then take the stand himself.

Note, though, that as a matter of trial strategy, this is generally considered a bad idea. You can read one discussion of this approach here.

In a pro se situation, I would imagine that a court would allow co-plaintiffs to examine each other, though I can also see reasons why it might require them to each testify independently -- primarily because neither is a lawyer and either one could unwittingly prejudice the others' rights.

Answer 3

A lawyer may call any (relevant) person as a witness, including someone on the opposite side. That includes the plaintiff's lawyer/prosecutor calling the defendant.

This is seldom done because by doing so, you have made this witness "your" witness, thereby meaningfully reducing your options. Normally, you wait for the other side to put the witness on the stand, and then "cross examine" him or her. So you would do this only if 1) there was a good chance that the defendant won't testify (so you don't get your "cross") and 2) there are important facts you want to get into evidence using the defendant.

Since the defendant is "your" witness, this limits your rights. For instance, you cannot "impeach" the defendant's testimony since you can't impeach your own witness. (Often, the case hinges on your impeaching the defendant on "cross.") Instead, the defense attorney can question the witness on "cross," (without putting up the witness for direct examination and allowing you to cross), since s/he is technically your witness.

And I was surprised to learn from Ohwilleke's answer that you can ask this witness "leading" questions as if you were on "cross" examination.

This tactic might make sense if you judge the defendant to be a "simp" who 1) cannot lie, or otherwise hurt your case and 2) may make damaging admissions that will help your case. Most defendants do not fall into that category.

Answer 4

Can a pro se plaintiff call the defendant as a witness and compel testimony in a civil suit?

Apparently not. Md Rule 3-701(e) prohibits any "pretrial discovery". So does Md 3-711, the "special rules" for landlord-tenant cases. And footnote 7 of Mostofi v. Midland Funding, 117 A.3d 639; 223 Md.App. 687(2015), although as obiter dictum, specifically indicates that it would not be possible to compel the defendant's agent to submit to cross-examination. It is still unclear whether that would apply to the defendants themselves.

I have not gone through all the 38 results of this query to see what other information might be useful/applicable to your situation.

Answer 5

No. In fact, if they so choose, the defendants may not even testify at all, which will leave you out of a cross-examination. To do otherwise is the very definition of compelled testimony and would not be allowed.

The procedure is that the plaintiff goes first and gets to call all their witness, experts, and present evidence. Each witness is given a direct examination by you and then a cross examination by the defense (and then a re-direct and a re-cross). After the prosection is done, then the defense can petition the judge to drop the case (it rarely happens, but it does occur... as the burden is not on the defense, if you don't sufficiently prove your case, then there's no need for the defense to go at all). The actual people who are charged do not need to testify and their whole case doesn't even need to present evidence to refute you.