Colloquy not required for defendant to waive right to remain silent at
trial
The Wisconsin Supreme Court recommends, but does not require, an
on-the-record colloquy to determine whether a defendant has waived a
right to not testify in his or her own defense.
By Joe Forward, Legal Writer,
State Bar of Wisconsin
Aug. 8,
2011 – A criminal defendant has a constitutional right to testify
that cannot be waived without an on-the-record colloquy. However, the
Wisconsin Supreme Court recently ruled that the corollary right to
not testify needn’t be waived through colloquy on the
record.
In State
v. Denson, 2011 WI 70 (July 13, 2011), the
Wisconsin Supreme Court held although trial courts should conduct an
on-the-record colloquy to determine whether the defendant
“knowingly, voluntarily, and intelligently” waived the right
to remain silent, it isn’t required.
“A criminal defendant’s constitutional right not to testify
is a fundamental right that must be waived knowingly, voluntarily, and
intelligently,” wrote Justice Annette Ziegler. “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” the right.
The state accused Rickey Denson of trying to
kill his girlfriend, and a jury ultimately found him guilty of
first-degree recklessly endangering safety and false imprisonment. Denson, who testified in his own defense,
brought a post-conviction relief motion and argued for a new trial.
The trial court did not conduct an on-the-record colloquy to determine
whether Denson knowingly waived his right to remain
silent, and it was required to do so, Denson argued. Thus,
Denson argued that a new trial was the
necessary remedy.
After an evidentiary hearing, the circuit court denied Denson’s motion, concluding that Denson knowingly waived the right even though
the trial court did not conduct an on-the-record colloquy. The appeals
court summarily affirmed in an unpublished order.
What about
Weed?
Denson relied on State
v. Weed, 2003 WI 85, 263 Wis. 2d
434, 666 N.W.2d 485, to argue that trial courts must
conduct an on-the-record colloquy in order for a defendant to
effectively waive the fundamental right to remain silent at trial.
In Weed, the supreme court imposed upon circuit courts an
affirmative duty to conduct an on-the-record colloquy when the defendant
is waiving his or her right to testify. But the supreme court declined
to extend Weed to include the right not to
testify.
“Once a defendant, counseled by his or her attorney, makes the
decision to testify, a circuit court’s inquiry into whether the
defendant is aware of his or her corollary right not to testify runs a
real risk of interfering with defense strategy and inadvertently
suggesting to the defendant that the court disapproves of his or her
decision to testify,” Justice Ziegler wrote.
The supreme court unanimously concluded that an evidentiary hearing is
the appropriate remedy to determine whether a right not to testify has
been made knowingly, voluntarily, and intelligently upon a motion for
post-conviction relief.
Chief Justice Shirley Abrahamson wrote a concurring opinion (joined by
Justice Ann Walsh Bradley), agreeing that Denson waived his
right not to testify. But she disagreed that an on-the-record colloquy
should not be required.
“I part company with the majority on the question whether an
on-the-record colloquy with the defendant should be merely recommended
as good practice or required,” the chief justice wrote. “The
majority adopts the former position; I would adopt the latter.”
