Attorneys handling criminal appeals will undoubtedly encounter trial records reflecting unilateral decisions by defense counsel which prevented their clients from testifying. This article briefly surveys the rights of the accused with regard to offering their own testimony and the obligation of defense counsel—as opposed to the court—to protect such rights. Also addressed is the remedy for an aggrieved defendant who has not been properly advised that the ultimate decision is not counsel’s to make.
‘People v. Cosby’
Recently, in People v. Cosby,1 the Appellate Division, Fourth Department, addressed the issue of “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.” The evidence at a hearing pursuant to a motion to vacate judgment2 revealed that, although Pierre Cosby had told his attorney of his desire to testify, he was never counseled that the decision whether to do so was his alone.
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