¶8 A criminal defendant’s constitutional right not to testify is a fundamental right that must be waived knowingly, voluntarily, and intelligently. However, we conclude that circuit courts are not required to conduct an on-the-record colloquy to determine whether a defendant is knowingly, voluntarily, and intelligently waiving his or her right not to testify. While we recommend such a colloquy as the better practice, we decline to extend the mandate pronounced in Weed. In any case, once a defendant properly raises in a postconviction motion the issue of an invalid waiver of the right not to testify, an evidentiary hearing is an appropriate remedy to ensure that the defendant knowingly, voluntarily, and intelligently waived his or her right not to testify.
Background, briefly: The defendant’s right to testify on his or her behalf at trial is a fundamental right, such that an on-the-record colloquy is required before waiver of that right is deemed valid, State v. Weed, 2003 WI 85, ¶¶39-40, 263 Wis. 2d 434, 666 N.W.2d 485. Denson raises a corollary, whether such a colloquy is required to establish that defendant know he does not have to testify, before taking the stand. Charged with multiple offenses, Denson testified – apparently quite successfully, obtaining two acquittals and a lesser-offense conviction on the attempted homicide count – but argued on postconviction motion that his testimony should have been preceded by a colloquy establishing knowledge of his right not to testify. The circuit court, following State v. Jaramillo, 2009 WI App 39, 316 Wis. 2d 538, 765 N.W.2d 855 (defendant raising postconviction claim of invalid waiver of right not to testify entitled to evidentiary hearing), heard from Denson and his trial attorney. The court made a credibility-based finding that Denson testified voluntarily, knowing he didn’t have to testify. Denson’s primary argument thus becomes the necessity of a contemporaneous colloquy, something the court now squarely rejects:
¶63 Turning to the central issue before us today, we decline to extend Weed to include the corollary to the right to testify——the right not to testify. That is, we conclude that circuit courts are not required to conduct an on-the-record colloquy to determine whether a defendant is knowingly, voluntarily, and intelligently waiving his or her right not to testify.
¶67 At the same time, as a practical matter, we recognize that conducting an on-the-record colloquy “is the clearest and most efficient means” of ensuring that the defendant has validly waived his or her right not to testify “and of preserving and documenting that valid waiver for purposes of appeal and postconviction motions.” See Klessig, 211Wis. 2d at 206; see also Anderson, 249 Wis. 2d 586, ¶23. Here, for instance, we are mindful of the fact that had the circuit court engaged Denson in an on-the-record colloquy regarding his right not to testify, this case likely would not be before us. Accordingly, we recommend an on-the-record colloquy as the better practice. In fact, the Special Materials prepared by the Wisconsin Criminal Jury Instructions Committee already direct circuit courts to inquire into a criminal defendant’s understanding of both the right to testify and the right not to testify. See WisJI——Criminal SM-28.
The court stresses that a postconviction evidentiary hearing, not automatic reversal, is the appropriate remedy in this context, ¶¶68-69, distinguishing State v. Livingston, 159 Wis. 2d 561, 464 N.W.2d 839 (1991) (on-record waiver of jury mandated by statute). Procedure follows now-familiar outlines: defendant bears an initial burden to make prima facie showing he didn’t understand the right not to testify; the burden then shifts to the State to prove by clear and convincing evidence a knowing, intelligent, voluntary waiver, ¶70. The circuit court conducted such a hearing and, its findings not being clearly erroneous, its decision that Denson validly waived his right not to testify stands, ¶¶71-79.
The holding appears to work a subtle, but significant amendment to Jaramillo, 2009 WI App 39, ¶18, which held without qualification, “the court was required, once the issue was raised in the postconviction motion, to determine whether Jaramillo knowingly and voluntarily waived his right not to testify.” Denson now holds, instead, that “once a defendant properly raises in a postconviction motion the issue of an invalid waiver of the right not to testify, the circuit court must conduct an evidentiary hearing” (emphasis supplied). The defendant now has what is in effect a burden of production – a prima facie showing that he or she didn’t know or understand the right not to testify – failing which, a hearing isn’t required. How is such a showing to be made? Is it enough that no colloquy was held? Is a mere assertion in the motion papers of lack of knowledge sufficient? Or is the defendant’s affidavit necessary? Draw your own conclusions, of course, but it’s probably best to proceed with caution.
Final, parenthetical note. The court reminds (¶62) that Weed “reserved for another day the issue of whether a postconviction evidentiary hearing would always be sufficient to ensure that a criminal defendant validly waived his or her right to testify.” And yet, the court of appeals has held “that the evidentiary hearing is the proper procedural response,” State v. Garcia, 2010 WI App 26, ¶14. The day has already dawned, in other words.