Right not to testify is fundamental

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Whenever a criminal defendant chooses not to testify at trial, the court must conduct a colloquy to determine that the defendant knows he has the right to do so.

But the corollary is not required — when the defendant does testify, the court need not conduct a colloquy to determine that he knows he has the right not to testify.

Nevertheless, the Wisconsin Supreme Court on July 13 recommended that an on-the-record colloquy occur, whatever the defendant does.

Ricky Denson went to trial in Rock County on a number of charges, and testified in his own defense. The jury found him guilty of some charges, and acquitted him of others.

Denson then moved for a new trial, arguing that the circuit court failed to engage him in a colloquy regarding his right not to testify. Denson relied on State v. Weed, 2003 WI 85, 263 Wis.2d 434, 666 N.W.2d 485, which requires a colloquy when the defendant doesn’t testify.

The circuit court held an evidentiary hearing, and found that, despite the lack of a colloquy, Denson knowingly waived his right not to testify.

The Court of Appeals affirmed, relying on its opinion in State v. Jaramillo, 2009 WI App 39, 765 N.W.2d 855. In Jaramillo, the court recommended that circuit courts conduct a colloquy, whether or not the defendant testifies; but concluded it lacked authority to require one.

The Supreme Court accepted review, and affirmed in an opinion by Justice Annette Kingsland Ziegler.

Fundamental right

The court first held that the right not to testify is a fundamental right that must be waived knowingly, voluntarily and intelligently.

The court agreed with the Court of Appeals in Jaramillo, that, if the right to testify is a fundamental right, the right not to testify is fundamental as well.

But the court did not go so far as to hold that the right not to testify can only be waived by the defendant personally in a colloquy with the court.

The court noted that Wisconsin is one of only a few jurisdictions that require circuit courts to conduct a colloquy when the defendant does testify. On the contrary, many jurisdictions, the court found, explicitly advise against such a colloquy, because it may inadvertently influence the defendant to waive his right not to testify.

The court found that these risks are even greater when a court inquires into a defendant’s decision to testify.

In light of the dangers of testifying, the court found it “unlikely that a competent defense counsel would allow a defendant to take the stand without a full explanation of the right to remain silent and the possible consequences of waiving that right.”

The court added, “Once a defendant, counseled by his or her attorney, makes the decision to testify, a circuit court’s inquiry into whether the defendant is aware of his or her corollary right not to testify runs a real risk of interfering with defense strategy and inadvertently suggesting to the defendant that the court disapproves of his or her decision to testify.”

Nevertheless, the court recommended a colloquy as the better practice.

Evidentiary hearing

But because the right not to testify is a fundamental right, the court added that a defendant is entitled to an evidentiary hearing when he asserts that he did not voluntarily waive it.

Reviewing the evidentiary hearing conducted by the circuit court in this case, the court agreed that Denson knew his rights.

Chief Justice Shirley Abrahamson wrote a concurring opinion joined by Justice Ann Walsh Bradley, agreeing that Denson knowingly waived his rights, but maintaining that an on-the-record colloquy should be required whenever a defendant testifies.

The concurrence criticized the majority opinion as inconsistent: “In one breath, the majority portends the danger of influence and encroachment into the attorney-client relationship when a circuit court engages in an on-the-record colloquy regarding the right not to testify. In the next breath, the majority advises that conducting a colloquy ‘is the clearest and most efficient means’ of ensuring that a defendant has validly waived the right not to testify, and so recommends it.”

Analysis

In practice, the court’s opinion should have no effect when a defendant goes to trial.

The court is correct when it surmises that no competent attorney would allow a defendant to testify without explaining the right not to testify and the consequences of testifying.

Realistically, any attorney who does not do so is likely so incompetent that his representation will be deficient in ways far more significant than this.

However, guilty plea colloquys may need to be changed as a result of the opinion.

The standard Wisconsin plea questionnaire and waiver of rights states, “I give up my right to testify and present evidence at trial.”

It also states, “I give up my right to remain silent and I understand that my silence could not be used against me at trial.”

In the first statement, the defendant clearly acknowledges that he has the right to go to trial and testify.

But in the second, there is no clear acknowledgement that he has the right to go to trial but not testify.

On the contrary, most defendants (and their attorneys, too) likely read the second statement as meaning simply that, by pleading guilty, the defendant is giving up his right against self-incrimination.

So, unless the standard questionnaire is revised to account for the right not to testify, the court’s opinion creates a wide opening for defendants to claim that their guilty pleas were not knowingly entered.

However baseless in fact such a claim might be, it is arguable that the plea questionnaire is defective on its face with respect to this right, and that any defendant is entitled to an evidentiary hearing on such a claim, as a matter of right.

Furthermore, such claims will be difficult to refute. If there is a trial, and the attorney was competent, he will be able to testify unequivocally that he advised his client of both the right to testify and the right not to testify.

But if the defendant pleads guilty, it is possible, and even likely, that the right to go to trial and not testify was never specifically discussed.

What the Court Held

Case: State v. Denson, No. 2009AP694-CR

Issues: Is the right not to testify at trial a fundamental right?

Must a circuit court inquire into whether the defendant knowingly waives the right?

Holdings: Yes. Like the right to testify, the right not to testify is fundamental.
No. While a colloquy is advisable, it is not required.

Attorneys: For Plaintiff: Maura F.J. Whelen, Madison; For Defendant: Donna Odrzywolski, Wauwatosa

David Ziemer can be reached at [email protected].