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Testimony Case Analysis

Notwithstanding the court’s decision, attorneys should vigorously contest that part of the decision that holds a defendant and his attorney can be compelled by the State to testify at an evidentiary hearing, if necessary.

The court held that a defendant and attorney can be compelled to testify, without any discussion whatsoever of the attorney-client privilege, and cited no authority for its holding except State v. Bangert, 131 Wis.2d 246, 389 N.W.2d 12 (1986), and State v. Johnson, 153 Wis.2d 121, 449 N.W.2d 12 (1990).

However, Bangert is very arguably distinguishable. Bangert governs instances when the defendant’s plea colloquy was inadequate. Once a defendant makes a prima facie showing that his guilty or no contest plea did not conform to the statutory requirements, the burden shifts to the state to show by clear and convincing evidence that the defendant’s plea was knowing, voluntary, and intelligently entered nonetheless. Bangert, 131 Wis.2d at 274.

At the Bangert hearing, “The state may examine the defendant or defendant’s counsel to shed light on the defendant’s understanding or knowledge of information necessary for him to enter a voluntary and intelligent plea.” Id. At 275.

In the case at bar, however, there is a much greater likelihood that requiring the defendant to testify will implicate his rights against self-incrimination, and requiring the attorney to testify will implicate the attorney-client privilege.

In the Bangert context, the error at issue is the court’s failure to properly apprise the defendant of his rights. Calling the defendant and his attorney to testify to determine whether he in fact knew he had the right to a jury trial, or that the jury’s decision must be unanimous, or the standard of proof at trial, or the right to cross-examine witnesses, is unlikely to implicate the privilege, or self-incrimination rights.

However, the decision whether a defendant will testify goes to the heart of the privilege. See State v. McDowell, 2004 WI 70, 681 N.W.2d 500 (attorney cannot shift from question and answer format to narrative questioning unless defendant indicates intent to testify untruthfully).

McDowell is obviously not directly applicable. Because the case involved an allegation of ineffective assistance of counsel, the defendant waives the privilege, as in Johnson. Nevertheless, remove the waiver, and it is apparent that any questioning of an attorney about his client’s decision to testify and what that testimony will involve will be permeated with privilege issues.

In the case at bar, the defendant’s Sixth Amendment right to counsel was indisputably violated by the introduction of an unlawfully gathered statement to police. To vindicate that right, the court now holds that he must sacrifice his attorney-client privilege. That can be construed as adding insult to injury.

It is distinguishable from the situation where a defendant has pleaded guilty, but because of a technical inadequacy in the plea colloquy, he now wishes to withdraw it.

By pleading guilty, the defendant set the error in motion; by challenging the admission of the confession, going to trial, and testifying, the defendant in the case at bar has consistently asserted and defended his rights. The error is wholly the fault of the court.

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Instead, it is arguable that State v. Meeks, 2003 WI 104, 263 Wis.2d 794, 666 N.W.2d 859 is more analogous. In Meeks, the court held that an attorney’s opinions, perceptions, and impressions relating to a former client’s mental competency fall within the definition of a confidential communication, and such communications cannot be revealed without the consent of the client.

An attorney’s impressions about why a client chose to testify are at least as likely to fit within the definition of a confidential communication, as the attorney’s impressions of the client’s competence.

It may be that the court of appeals’ ultimate conclusion — that the State can compel the defendant and his attorney to testify — is sound, but without any discussion of the attorney-client privilege, attorneys should be very wary about accepting this decision as the final word on the matter.

In the case at bar, Anson called his attorney to testify, so the issue was not squarely raised and contested. If a defendant objects to his trial attorney testifying, however, the appellate attorney should argue the holding is mere dicta, and assert the privilege.

– David Ziemer

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David Ziemer can be reached by email.

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