Attorneys Have Duty to Inform Defendants that the Ultimate Decision Whether to Testify is the Defendants' Alone

Both the United States Supreme Court and the New York Court of Appeals have held that once a defendant chooses to be represented by counsel, counsel and not the defendant has control over most strategic decisions are made by the attorney and not the defendant (Jones v Barnes, 463 US 745, 751 [1983]; People v White, 73 NY2d 468, 478 [1989]). However, there are a few decisions that are so critical that they can be made only by the client. These decision that can only be made by the defendant, upon the advise of counsel, are whether to plead guilty, whether to waive a jury trial, whether to testify at trial and whether to appeal(Jones v Barnes, at 751; White, at 478)

In People v Cosby (2011 NY Slip Op 00925 [4th Dept 2/11/11) the Appellate Division, Fourth Department considered the question of who is responsible for insuring that the defendant is aware that he and the counsel get to decide whether the defendant should testify at trial. In the context of a record showing that neither the court nor the attorney ever informed the defendant who told his attorney that he wanted to testify that the decision to testify is reserved to the defendant, not defense counsel, the Appellate Division, Fourth Department held that

The trial court has no obligation to inform a defendant of his or her right to testify or to ascertain if the failure to testify was a voluntary and intelligent waiver of his or her right to do so (see People v Fratta, 83 NY2d 771, 772; People v Dolan, 2 AD3d 745, 746, lv denied 2 NY3d 798). The issue here, however, is whether a defendant's attorney has a duty to advise the defendant of his or her right to testify, even against the advice of the attorney. We conclude that the attorney does have that duty.

"[T]rial counsel's duty of effective assistance includes the responsibility to advise the defendant concerning the exercise of [the] constitutional right" to testify at trial (Brown v Artuz, 124 F3d 73, 74, cert denied 522 US 1128; see People v Carpenter, 52 AD3d 729, lv denied 11 NY3d 830; People v Perry, 266 AD2d 151, 152, lv denied 95 NY2d 856). In addition to informing the defendant that he or she has the right to testify at trial, in the event that the attorney advises the defendant not to testify, the attorney must also inform the defendant that the ultimate decision whether to testify is the defendant's alone (see Brown, 124 F3d at 79; Teague, 953 F2d at 1533). Without receiving such advice, a defendant may erroneously believe that the decision whether to testify is one of the many decisions over which the defendant's attorney has control (see generally Ferguson, 67 NY2d at 390).

The People contend that "the law should not, as a matter of sound public policy, place the burden of affirmatively telling a client that the client can ignore defense counsel's advice upon a defense attorney." We reject that contention. Rather, we conclude that it is indeed sound public policy for defense counsel to notify a defendant that he or she has a fundamental right to testify on his or her own behalf and that the decision whether to testify rests with defendant, not counsel. Of course, defense counsel should still render advice to defendant concerning whether a good trial strategy would warrant testifying on his or her own behalf. But we cannot stress enough that defense counsel should make it clear to the defendant that it is the defendant, not counsel, who has the final word on the matter. The imposition of such a duty on defense counsel is consistent with the Rules of Professional Conduct (22 NYCRR 1200.0) rule 1.2 (a), which provides in relevant part that, "[i]n a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to . . . whether the client will testify." We thus agree with the court that defense counsel erred in this case by failing to advise defendant that the final decision whether to testify was defendant's to make.