Defendant’s Right To Testify

United States v. Gillenwater, 717 F.3d 1070 (9th Cir. 2013)

The defendant was represented by counsel at a competency hearing. The attorney refused to call him to the stand and the defendant complained – disruptively – and was removed from the courtroom. The Ninth Circuit holds that a defendant has a constitutional right to testify at his competency hearing, even over the advice of counsel. (The dialogue at the hearing was essentially as follows: “Counsel: I have advised him not to testify.” Defendant: “That’s because you’re a criminal.” Court: “Mr. Gillenwater, that’s enough.” Defendant: “Then get me the fuck out of here.”)

United States v. Hung Thien Ly, 646 F.3d 1307 (11th Cir. 2011)

The defendant represented himself at trial. The judge asked him if he wanted to testify. The defendant expressed concern that he would not a lawyer to ask him questions, and he would have to submit to cross-examination without having the opportunity to present his testimony. The judge kept asking him, “Do you want to testify, or not?” without explaining that he would, in fact, have the opportunity to present his own sworn testimony. This was reversible error. Though a judge has no obligation to explain the law to a defendant who is representing himself, the judge is required to correct a misimpression as in this case.

Canaan v. McBride, 395 F.3d 376 (7th Cir. 2005)

Failing to advise a defendant in a death penalty case that he may testify during the penalty phase – even if he did not testify in the guilt-innocence phase, is ineffective assistance of counsel.

United States v. Mullins, 315 F.3d 449 (5th Cir. 2002)

Defense counsel prevented the defendant from testifying in his firearms trial. Counsel’s decision was based on the desire to keep out impeaching information, such as the defendant’s prior drug dealing and bad check charges. The Fifth Circuit concludes that barring the defendant from testifying is deficient performance under Strickland v. Washington, though there was no prejudice in this case. Counsel is obligated to advise the defendant of the strategy decisions being made, but with regard to whether the defendant should testify, the defendant makes the ultimate decision and that decision may not be vetoed by counsel.

United States v. Midgett, 342 F.3d 321 (4th Cir. 2003)

The defendant told his attorney that he was asleep in the backseat of the car when two other people committed the crime. There was no other evidence to support this version of events. The attorney asked to withdraw from the case, claiming an ethical issue and when the court denied the motion to withdraw, refused to call the defendant to the stand. The judge gave the defendant the choice to either proceed pro se or acquiesce to the attorney’s decision that the defendant would not testify. This was improper. There was insufficient evidence to establish the defendant’s intent to commit perjury.

United States v. Vargas, 920 F.2d 167 (2d Cir. 1990)

Though deciding the case on other grounds, the appellate court addressed the question of how a defendant should raise a claim that his attorney refused to call him to testify at trial. Without deciding the question, the court concludes that the defendant’s failure to complain at trial does not amount to a waiver of this claim that he was denied the constitutional right to testify.

United States v. Pennycooke, 65 F.3d 9 (3rd Cir. 1995)

It is not appropriate for the trial judge to question the defendant about his decision whether to testify, or not. Instructing the defendant that he has the right to testify could influence the defendant to waive his Fifth Amendment right not to testify. Therefore, only in an unusual case, where there appears to be discord between the defendant and his attorney should the trial court address the issue – but even then, only discreetly.

Nichols v. Butler, 953 F.2d 1550 (11th Cir. 1992)

The defendant’s attorney insisted that the defendant not testify in his own defense. The attorney threatened to withdraw if the client did testify. This violated the defendant’s right to testify and required a new trial. The right to testify at trial cannot be forfeited by counsel, but only by a knowing, voluntary, and intelligent waiver by the defendant himself. The right to testify in his own defense is a fundamental right. Rock v. Arkansas, 483 U.S. 44 (1987). After rehearing en banc, the decision was affirmed.

United States v. Teague, 953 F.2d 1525 (11th Cir. 1992)

A defendant has the fundamental right to testify in his own defense. This may only be waived personally, not solely through counsel. Thus, if the attorney vetoes the defendant’s decision to testify, the defendant may challenge his conviction. After rehearing the case en banc, the Eleventh Circuit re-affirmed the principle that the defendant has a fundamental right to testify and the right may not be unilaterally waived by his attorney. However, the facts in this case did not show that the defendant’s will was overborne. Rather, the attorney urged the defendant not to testify and the defendant agreed. Consequently, there was no ineffective assistance of counsel.