On Point: F. Defendant's testimony

Review of unpublished per curiam court of appeals decision; case activity

Issue (composed by On Point)

Does harmless error analysis apply when a trial judge erroneously denies a defendant the right to testify in her own defense?

Nelson wanted to testify in her child sexual assault trial, and the court engaged in a colloquy with her about waiving her right to remain silent, see State v.

State v. Leshurn Hunt, 2010AP2516, District 4, 5/16/13 (not recommended for publication); case activity

Issue:  Was defendant’s decision not to testify at trial knowing, intelligent and voluntary on the grounds that; (a) the court conducted a defective colloquy; (b) the defendant was coerced to waive his right to testify; and (c) the defendant received ineffective assistance of counsel?

Holding:  Hunt’s waiver was fine.  The legal test is set forth in State v.

State v. Allen Dell Vaughn, 2012 WI App 129 (recommended for publication); case activity

Waiver / Forfeiture of Right, Generally 

Waiver is the intentional relinquishment or abandonment of a known right or privilege; forfeiture is:  (1) the failure to object to something without intending to relinquish that which an objection might have preserved and (2) doing something incompatible with the assertion of a right, ¶21, citing State v.

State v. Joel Joseph Lobermeier, 2012 WI App 77 (recommended for publication); for Lobermeier: Andrea Taylor Cornwall, SPD, Milwaukee Appellate; case activity

Appellate Procedure – Waiver – Jury Instructions 

Failure to object to a jury instruction amounts to a failure to preserve for review an asserted objection, which must therefore be reviewed in the context of ineffective assistance of counsel. Nonetheless, failure to object to a “material variance”

On Point is very pleased to present this Guest Post discussion of State v. Funk and State v. Denson, by the Honorable Richard J. Sankovitz, Milwaukee County Circuit Court. Feel free to submit comments in the box at the end of the Post.

Trial judges monitor the flurry of end-of-term Wisconsin Supreme Court decisions for new rules of decision and new procedures to be followed in our courts. 

State v. Rickey R. Denson, 2011 WI 70, affirming unpublished summary order; for Denson: Donna Odrzywolski; case activity

¶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.  

State v. David Arredondo, 2004 WI App 7, PFR filed 1/22/04
For Arredondo: James A. Rebholz
Issue/Holding:

¶11. A defendant’s right to testify is a fundamental constitutional right. State v. Simpson, 185 Wis. 2d 772, 778, 519 N.W.2d 662, 663 (Ct. App. 1994). A defendant may, however, waive the right to testify. State v. Wilson, 179 Wis. 2d 660,