Nelson v. Wisconsin - Defining Structural Error via a Defendant's Right to Testify

The US Supreme Court will soon take up Nelson v. Wisconsin a case that could finally add some clarity to the Court's "structural error" doctrine. The question presented in Nelson is rather straight-forward. Is the complete denial of a Defendant's right to testify subject to harmless-error analysis?

Six Courts (Four state high courts and two federal courts) have said no, finding the denial of a Defendant's right to testify is structural error. See South Carolina Supreme Court (State v. Rivera, 741 S.E.2d 694 (S.C. 2013)), the Louisiana Supreme Court (State v. Dauzert, 769 So. 2d 1206 (La. 2000)), the Minnesota Supreme Court (State v. Rosillo, 281 N.W.2d 877 (Minn. 1979)), the District of Columbia Court of Appeals (Boyd v. United States, 586 A.2d 670 (D.C. 1991)), and two federal district courts in United States v. Butts, 630 F. Supp. 1145, 1148 (D. Me. 1986 ) and Paradise v. DuBois, 188 F. Supp. 2d 4, 9 (D. Mass. 2001). The Dissenting Opinion in the Wisconsin Supreme Court agreed, stating that error should be considered structural where it “undermines a right founded on the respect for free choice and the human dignity of the individual.”

Seven Courts (State v. Sevigny, 722 N.W.2d 515, 522 (N.D. 2006); Quarels v. Commonwealth, 142 S.W.3d 73, 82 (Ky. 2004); Ortega v. O’Leary, 843 F.2d 258, 262 (7th Cir.), cert. denied , 488 U.S. 841 (1988); United States v. Smith, 433 Fed. Appx. 847, 851 - 52 (11th Cir. 2011) (unpublished opinion); Solomon v. Curtis, 21 Fed. Appx. 360 , 363 (6th Cir. 2001)(unpublished opinion), cert. denied sub nom. Solomon v. McLemore, 534 U.S. 1137 (2002); People v. Solomon, 560 N.W.2d 651, 655 (Mich. Ct. App. 1996), cert. denied, 524 U.S. 930 (1998)) have found the error to be subject to harmless-error analysis. The Majority Opinion of the Wisconsin Supreme Court agreed with these cases, finding the error subject to harmless-error review because a constitutional error is structural only if it “permeate[s] the entire trial.” Since a complete denial of the right to testify “occurs at a discrete point in the trial" it is subject to harmless-error review.

The Court is presented with the opportunity to provide clarity to the structural error analysis muddied by Fulminante. The relatively straight-forward facts here lead this author to believe the Court will accept that opportunity and clarify the definition of "structural" error.

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