At least three justices of the Supreme Court of the United states think so. The three (Sotomayor, Ginsburg, and Kagan) dissented from the court’s denial of certiorari in Reeves v. Alabama last week. Reeves had challenged his death sentence on the ground that his counsel had been ineffective in investigating and presenting potential mitigation evidence. He presented substantial evidence on the claim but did not call his former lawyer to testify. The Alabama high court held (or seemed to hold) that the failure to call trial counsel automatically doomed the ineffective claim: a rule that Wisconsin has followed at least since 1979’s State v. Machner.
Reeves petitioned for cert, arguing that the requiring trial counsel’s testimony is contrary to Strickland v. Washington. Interestingly, the state did not respond that such a rule was valid, instead contending that the Alabama court had not really applied it. From the dissent:
There can be no dispute that the imposition of a categorical rule that counsel must testify in order for a petitioner to succeed on a federal constitutional ineffective-assistance-of-counsel claim contravenes our decisions requiring an objective inquiry into the adequacy and reasonableness of counsel’s performance based on the full record before the court. Even Alabama does not defend
such a rule….
This Court has never, however, required that a defendant present evidence of his counsel’s actions or reasoning in the form of testimony from counsel, nor has it ever rejected an ineffective-assistance claim solely because the record did not include such testimony. Rather, Strickland and its progeny establish that when a court is presented with an ineffective-assistance-of-counsel claim, it should look to the full record presented by the defendant to determine whether the defendant satisfied his burden to prove deficient performance. The absence of counsel’s testimony may make it more difficult for a defendant to meet his burden, but that fact alone does not absolve a court of its duty to look at the whole record and evaluate the reasonableness of counsel’s professional assistance in light of that evidence.
Per the petition, Wisconsin joins only Alabama, Texas, and the Eleventh Circuit in requiring trial counsel testimony, with five federal circuits on the other side of the split. (In fact, the Seventh Circuit has upheld a habeas grant to a Wisconsin inmate who declined to call trial counsel, despite the state’s contrary rule.) SCOTUS has declined, this time, to decide whether the rule is constitutional, but it’s worth keeping in mind that the question is out there.