Right to testify and not testifying

I came across a case that had this interesting piece in it while discussing some IAC claims.

A defendant’s constitutional right to testify in his own behalf is implicit in the Fifth, Sixth, and Fourteenth Amendments. Rock v. Arkansas, 483 U.S. 44, 51-53 (1987). However, "[w]hether the defendant is to testify is an important tactical decision as well as a matter of constitutional right." Brooks v. Tennessee, 406 U.S. 605, 612 (1972). "Although the ultimate decision whether to testify rests with the defendant, he is presumed to assent to his attorney’s tactical decision not to have him testify." United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993). A defendant’s "silence" after his attorney decides not to call him as a witness implies that he has waived the right to testify on his own behalf. See United States v. Pino-Noriega, 189 F.3d 1089, 1095 (9th Cir.) cert. denied, 528 U.S. 989 (1999).

As noted in Pino-Noriega, the failure to testify should "not be raised as an afterthought after conviction." Id. at 1096. Rather,

[a] defendant who wants to reject his attorney’s advice and take the stand may do so "by insisting on testifying, speaking to the court, or discharging his lawyer." When a defendant remains "silent in the face of his attorney’s decision not to call him as a witness," he waives the right to testify.

Id. at 1094-95 (internal citations omitted). By extension, this rationale would apply to situations where, as here, counsel limits a defendant’s testimony for tactical reasons.

In United States v. Swisher the court did not order an evidentiary hearing or ask for affidavits on the IAC claim (emphasis added).  I take this case as a reminder to make sure you thoroughly discuss the testimony decision with the client, and if necessary document it.

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