Wisconsin Court of Appeals rules man has right not to testify: Waiver must be knowing and voluntary.

• Author: Ziemer, David

Byline: David Ziemer

It's a common event in criminal trials -- the court conducts a colloquy with the defendant to determine that he is voluntarily and knowingly waiving his right to testify.

But after a Feb. 17 opinion by the Wisconsin Court of Appeals, it will be wise policy for circuit courts to conduct a colloquy even when the defendant does testify -- to ensure the defendant is voluntarily and knowingly waiving his right not to testify.

Although the court lacks the Supreme Court's supervisory authority to order that such colloquys occur, the court recommended it as good practice.

Mark A. Jamarillo was charged with armed robbery of a convenience store, and testified at trial.

After the jury found him guilty, he filed a postconviction motion, arguing he did not know he had the right not to testify, and that, if he did not testify, the court would instruct the jury that his silence was not evidence of guilt.

The circuit court denied the motion, and Jamarillo appealed.

In an opinion by Judge Gregory A. Peterson, the Court of Appeals first held that the right not to testify is a fundamental right protected by the Fifth Amendment. Reviewing Supreme Court precedents holding that the right to testify is a fundamental right, the court concluded, It follows then that the constitutionally articulated corollary to the right to testify -- the right not to testify -- is fundamental as well.

The state argued that Jamarillo's claim was thinly disguised ineffective assistance of counsel claim that must fail because no precedent requires an express waiver of the right not to testify.

However, the court disagreed, concluding that the state's argument mixes apples and oranges.

The court explained, whether a defendant has been denied effective assistance of counsel is an inquiry directed at the attorney's behavior; 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 (emphasis in original).

Accordingly, the court determined that the circuit court was obligated to determine at the postconviction hearing whether Jaramillo knowingly and voluntarily waived his right not to testify.

Included in this right, the court listed the right not to testify, the consequences of not testifying, and that the right could be...