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Due Process – Defendant’s Right to Testify – Personal Waiver Required

State v. Patricia A. Weed, 2003 WI 85, affirming unpublished opinion of court of appeals
For Weed: T. Christopher Kelly

Issue/Holding: A defendant has a “fundamental” constitutional right to testify on his or her own behalf. ¶39.

¶43. Accordingly, in order to determine whether a criminal defendant is waiving his or her right to testify, a circuit court should conduct an on-the-record colloquy with the defendant outside the presence of the jury. The colloquy should consist of a basic inquiry to ensure that (1) the defendant is aware of his or her right to testify and (2) the defendant has discussed this right with his or her counsel.

In this instance, the trial court held a postconviction hearing that established that Weed’s waiver had been knowing, intelligent and voluntary. ¶46. The court thus leaves open “the appropriate remedy if a circuit court fails to conduct an on-the-record colloquy with a criminal defendant to ensure that the defendant is waiving his or her right to testify,” ¶47 — by which the court means “the appropriate remedy if a circuit court fails to conduct an on-the-record colloquy with a criminal defendant to ensure that the defendant is waiving his or her right to testify.” Harmless error is something else, and presumably by terming the right to testify so fundamental as to require for ist waiver an on-record colloquy, and by likening it to right to jury trial, the court is saying that harmless error is out-of-bounds. The court recognizes that its holding is in the minority, ¶41; for a representative case in the majority (issue must be raised as ineffective assistance of counsel and must show prejudice inasmuch as error isn’t “structural,” see Johnson v. State, Tex Crim App No. PD-1623-03, 5/25/05.

 

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