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300.30 Defendant's Right To Testify

    300.30.1 Constitutional Claims: Defendant's Right To Testify: General Principles
    300.30.2 Defendant's Right To Testify: Cannot Be Waived By Counsel
    300.30.3 Defendant's Right To Testify: Request That Defendant Be Allowed To Testify Before The Prosecution Witness

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PRACTICE NOTE: The 6th Amendment right to compulsory process, confrontation and fair trial by jury as well as the 5th and 14th Amendment rights to due process ensure the defendant's right to testify in his or her defense. (See Rock v. Arkansas (1987) 483 US 44, 51-53 [107 SCt 2704; 97 LEd2d 37]; Griffin v. California (1965) 380 US 609, 611 [85 SCt 1229; 14 LEd2d 106].)

    See also NCJIC 300.6.2 [Defense Theory Instruction Required By Due Process, Compulsory Process And Confrontation].

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PRACTICE NOTE: Generally, a right that is fundamental and personal to the defendant may only be waived if there is evidence in the record demonstrating "an intentional relinquishment or abandonment of a known right or privilege."  (See Johnson v. Zerbst (1938) 304 US 458, 464 [58 SCt 1019; 82 LEd 1461].) While counsel have authority to control most tactical decisions, the defendant’s desires prevail as to matters regarding whether his or her testimony. "[T]he accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal." (Jones v. Barnes (1983) 463 US 745, 751 [103 SCt 3308; 77 LEd2d 987]; compare People v. Rogers (CA 1961) 56 C2d 301, 305 [14 CR 660] [defendant has right to decide whether to plead guilty to lesser offenses].)

    Accordingly, "[s]ince the right to testify at one's own trial is a fundamental right, it follows that the right may only be waived personally by the defendant." (Momon v. State (TN 1999) 18 SW3d 152, 161; see also Hughes v. State (AK 1973) 513 P2d 1115, 1119; State v. Noble (1973) 514 P2d 460, 462; People v. Robles (CA 1970) 2 C3d 205, 215 [85 CR 166]; People v. Ingle (NV 1976) 546 P2d 598, 599-600; State v. Robinson (WA 1999) 982 P2d 590, 594; but see Sims v. State (IN 1965) 208 NE2d 469, 472 [defendant not denied constitutional right by attorneys' threats to withdraw from case if he testified in his own behalf]; Kinder v. Commonwealth (KY 1954) 269 SW2d 212 [defense counsel failure to advise of the right to testify does not constitute denial of that right].)

    It has been suggested that defense counsel should utilize the following procedure:

    "At any time before conclusion of the proof, defense counsel shall request a hearing, out of the presence of the jury, to inquire of the defendant whether the defendant has made a knowing, voluntary, and intelligent waiver of the right to testify. This hearing shall be placed on the record and shall be in the presence of the trial judge. Defense counsel is not required to engage in any particular litany, but counsel must show at a minimum that the defendant knows and understands that:

    (1)     the defendant has the right not to testify, and if the defendant does not testify, then the jury
             (or court) may not draw any inferences from the defendant's failure to testify;

    (2)     the defendant has the right to testify and that if the defendant wishes to exercise that right, no 
             one can prevent the defendant from testifying;

    (3)     the defendant has consulted with his or her counsel in making the decision whether or not to
              testify; that the defendant has been advised of the advantages and disadvantages of testifying; 
              and that the defendant has voluntarily and personally waived the right to testify." [Source: 
              Momon v. State, 18 SW3d at pp. 161-62]

    See NCJIC 4.3.3.5 [Defense Strategy Inconsistent With Claim Of Innocence].

    See also NCJIC 265.3.1 [Whether Defendant Or Counsel Should Make The Ultimate Decision To Request A Lesser Included Offense Instruction].

    See also NCJIC 18.5.2.2 [Cautionary Instruction When Defendant Testifies In Narrative Form].

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    See NCJIC 18.5.3.3 [Request That Defendant Be Allowed To Testify Before The Prosecution Witnesses].