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Due Process – Defendant’s Right to Testify – Exercise of Right: Knowing, Voluntary Waiver of Right Not to Testify

State v. Mark A. Jaramillo, 2009 WI App 39
For Jaramillo: Margaret A. Maroney, SPD, Madison Appellate

Issue: Whether the trial court must conduct a colloquy before a defendant testifies to determine whether waiver of the right not to testify is knowing and voluntary.


¶16      We have previously noted that we do “not possess any supervisory authority which would permit [us] to promulgate rules of criminal practice and procedure.” State v. Perez, 170 Wis. 2d 130, 137, 487 N.W.2d 630 (Ct. App. 1992). Rather, “Wisconsin’s constitution and statutes limit such a law-developing or law-declaring function exclusively to the Wisconsin Supreme Court.” Id. Our constitution gives the supreme court supervisory authority over all of the courts of this state, but delegates such authority to the court of appeals only over “the courts in the district.” Wis. Const. art. § 3(2)-(3). A mandate that all courts in Wisconsin must conduct a colloquy to ensure a defendant knowingly and voluntarily waives the right not to testify must therefore come from the supreme court.¶17      Although we cannot require a colloquy, we do recommend it as good practice. The comments to Wis JI—Criminal SM-28 [2] acknowledge Weed only requires a colloquy when a defendant seeks to waive the right to testify; however, the jury instruction committee “concluded that a similar inquiry should be conducted when the defendant decides to testify, because a constitutional right is involved regardless of the decision that is made.” Wis JI—Criminal SM-28, comment. A colloquy benefits not just the defendant, but the courts as well. Just as in Weed, a colloquy “serves the dual purposes of ensuring that a defendant is not deprived of his [or her] constitutional rights and of efficiently guarding our scarce judicial resources.” Weed, 263 Wis. 2d 434, ¶39 (quoting State v. Klessig, 211 Wis. 2d 194, 206, 564 N.W.2d 716 (1997)).

Because the right not to testify is a fundamental constitutional right, its waiver must be knowing and voluntary (¶8), and Jaramillo is entitled to a hearing on his postconviction motion arguing that he did not validly waive the right when he testified at his trial:

¶18      Jaramillo had a fundamental constitutional right not to testify. The circuit court was not obligated to conduct a colloquy during the trial to ensure Jaramillo waived that right. Nevertheless, 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. Therefore, we remand for the parties to offer evidence should they so choose, and for the court to decide whether Jaramillo knowingly and voluntarily waived his right not to testify.

The court rejects the idea that this claim is cabined by ineffective-counsel principles:

¶13      We agree with Jaramillo that his claim he did not knowingly and voluntarily waive the right not to testify is not confined to a claim of ineffective assistance of counsel. To hold to the contrary would mix apples and oranges: whether a defendant has been denied effective assistance of counsel is an inquiry directed at the attorney’sbehavior; whereas whether a defendant knowingly and voluntarily waived the right not to testify asks what the defendant knew and understood. While defendants no doubt depend upon their attorneys to inform them of their rights, what a defendant comprehends is not necessarily a result of the attorney’s performance.

The court does not, however, otherwise explain what goes into the knowing / voluntary inquiry.

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