2014 WI 70

SUPREME COURT OF WISCONSIN

CASE NO.: 2012AP2140-CR 

COMPLETE TITLE: State of Wisconsin,

 Plaintiff-Respondent,

 v.

Angelica C. Nelson,

 Defendant-Appellant-Petitioner. 

REVIEW OF A DECISION OF THE COURT OF APPEALS 

Reported at 351 Wis. 2d 224, 838 N.W.2d 865

(Ct. App. 2013 – Unpublished)

OPINION FILED: July 16, 2014

SUBMITTED ON BRIEFS: 

ORAL ARGUMENT: March 18, 2014 

SOURCE OF APPEAL:

COURT: Circuit 

COUNTY: Eau Claire

JUDGE: William M. Gabler Sr.

JUSTICES:

CONCURRED: ZIEGLER, J., concurs. (Opinion filed.) 

DISSENTED: ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion 

filed.) 

NOT PARTICIPATING: 

ATTORNEYS:

For the defendant-appellant-petitioner, there were briefs 

by Michelle L. Velasquez, assistant state public defender, and 

oral argument by Michelle L. Velasquez.

For the plaintiff-respondent, the cause was argued by Aaron 

O’Neil, assistant attorney general, with whom on the brief was 

J.B. Van Hollen, attorney general. 
2014 WI 70

NOTICE

This opinion is subject to further 

editing and modification. The final 

version will appear in the bound 

volume of the official reports. 

No. 2012AP2140-CR

(L.C. No. 2011CF523)

STATE OF WISCONSIN : IN SUPREME COURT

State of Wisconsin,

 Plaintiff-Respondent,

 v.

Angelica C. Nelson,

 Defendant-Appellant-Petitioner.

FILED

JUL 16, 2014

Diane M. Fremgen

Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed. 

¶1 PATIENCE DRAKE ROGGENSACK, J. We review an 

unpublished decision of the court of appeals1 that affirmed a 

judgment the Eau Claire County Circuit Court2 entered on a jury 

verdict convicting defendant Angelica Nelson of three counts of 

sexual assault of a child, contrary to Wis. Stat. § 948.02(2)

(2011-12).

3 

 

1 State v. Nelson, No. 2012AP2140-CR, unpublished slip op. 

(Wis. Ct. App. Sept. 4, 2013).

2 The Honorable William M. Gabler, Sr. presided.

3 All subsequent references to the Wisconsin Statutes are to 

the 2011-12 version unless otherwise indicated.
No. 2012AP2140-CR 

2

¶2 Our review concerns the circuit court's refusal to 

allow Nelson to testify at trial based on a finding that she was 

not validly waiving her right against self-incrimination. While

Nelson did not intend to dispute that she engaged in conduct 

that met the elements of the crimes charged, she wanted to 

testify at trial because she "want[ed] [her] side to be heard." 

¶3 Nelson argues that the circuit court's decision 

deprived her of her rights under the Fifth, Sixth, and 

Fourteenth Amendments to the United States Constitution, and 

that she is automatically entitled to a new trial because the 

denial of a defendant's right to testify is not amenable to 

harmless error review. 

¶4 The State does not dispute that the circuit court 

erred in refusing to allow Nelson to testify. Instead, it 

argues that harmless error review applies to that error under 

the governing framework of structural and trial errors. It 

further argues that the error was harmless because evidence 

showed that Nelson admitted to having sexual intercourse with a 

14-year-old victim on three occasions, and she did not intend to 

dispute that assertion if she testified. 

¶5 We conclude that harmless error review applies to the 

circuit court's alleged denial of Nelson's right to testify 

because its effect on the outcome of the trial is capable of 

assessment. See Arizona v. Fulminante, 499 U.S. 279, 307-08 

(1991). We further conclude that, given the nature of Nelson's 

defense and the overwhelming evidence of her guilt, the alleged 
No. 2012AP2140-CR 

3

error was harmless beyond a reasonable doubt. Accordingly, we 

affirm the decision of the court of appeals. 

I. BACKGROUND4

¶6 Nelson was a friend of the family of the victim, D.M. 

She frequented D.M's neighborhood and walked D.M.'s younger 

siblings home from school on a regular basis. She saw D.M.'s 

mother, Tamyra, nearly every day. When she was 18 years old, 

Nelson met D.M., who was 14 years old at that time.

¶7 After she became acquainted with Nelson, Tamyra heard 

rumors that Nelson "thought [D.M.] was hot and that [Nelson] 

wouldn't mind dating him." Tamyra told Nelson that under no 

circumstances was Nelson to be involved with D.M. 

¶8 Shortly after having this conversation with Nelson, 

Tamyra heard that Nelson had not heeded her warning. Tamyra 

sent a text message to Nelson and asked her if she had "sex"

with D.M. Nelson responded, "You're going to be mad at me; but,

yes, I did." After Tamyra reminded Nelson that D.M. was a 

child, Nelson texted back, "I know there[] [are] laws, but he's 

hot and I'm sorry." 

¶9 Tamyra called the police, and Officer Dana Brown 

responded to Tamyra's home. When Officer Brown arrived, Tamyra 

was on the phone with Nelson. Tamyra placed the call on 

speakerphone, and Officer Brown overheard Nelson admit to having 

sexual intercourse with D.M. at least three times. He also 

 

4 The following facts are taken from witness testimony at 

trial unless otherwise indicated. 
No. 2012AP2140-CR 

4

viewed the text messages between Tamyra and Nelson on Tamyra's 

phone. 

¶10 Officer Brown subsequently interviewed D.M. in his 

squad car. D.M. said that he had "sex" with Nelson on three 

consecutive days behind the Altoona elementary school and that 

it was Nelson's idea. While D.M. could not remember a specific 

date that the assaults occurred, he recalled that he received a 

citation for violating curfew just after the third assault. 

Officer Brown testified that D.M. received that citation on 

May 11.

¶11 Officer Scott Kelley followed up on Tamyra's complaint 

by interviewing Nelson at the police station. During that 

interview, Nelson told Officer Kelley that she had sexual 

intercourse with D.M., whom she knew to be 14 years old at that 

time, on three occasions behind the elementary school and that 

it was D.M.'s idea. 

¶12 The State charged Nelson with three counts of sexual 

assault of a child, contrary to Wis. Stat. § 948.02(2).5 The 

amended complaint stated that the assaults occurred on May 8, 9, 

and 10 of 2011. The State came up with these dates using the 

curfew citation D.M. received on the night of the third assault, 

and working backwards according to D.M.'s statement that the 

assaults occurred on three consecutive nights. 

 

5 Wisconsin Stat. § 948.02(2) provides that "[w]hoever has 

sexual contact or sexual intercourse with a person who has not 

attained the age of 16 years is guilty of a Class C felony."
No. 2012AP2140-CR 

5

¶13 Nelson initially pleaded not guilty by reason of 

mental disease or defect. After the circuit court found that, 

despite some mental limitations, Nelson could appreciate the 

wrongfulness of her conduct and conform it to the requirements 

of the law, Nelson changed her plea to not guilty. 

¶14 At trial, the State presented testimony from Tamyra, 

D.M., and the two police officers. When the State rested, Judge 

Gabler asked Nelson's attorney if Nelson wanted to testify. 

Nelson said that she did. Judge Gabler proceeded to engage 

Nelson in a colloquy about waiving her right against selfincrimination, which Nelson said she understood.

¶15 Judge Gabler also asked Nelson about the substance of 

her testimony. Nelson said that she "want[ed] to tell what 

actually happened." She also wanted to testify that she did not 

unbuckle D.M.'s pants and that the assaults did not happen three 

days in a row. Judge Gabler explained that this testimony had 

no bearing on the elements of the offense, and made sure that 

Nelson's attorney had expressed to Nelson that "it wouldn't be a 

good idea" for Nelson to testify. 

¶16 The circuit court then found that Nelson was not 

"intelligently and knowingly waiving her right against selfincrimination because she wants to testify to things that are 

completely irrelevant to the two things that the [S]tate has to 

prove." 

¶17 The jury convicted Nelson on all three counts, and the 

court withheld a sentence and placed her on probation for five 

years. Nelson filed a motion for post-conviction relief, 
No. 2012AP2140-CR 

6

asserting that the court violated her constitutional right to 

testify on her own behalf and therefore, a new trial was 

required. The circuit court denied Nelson's motion. The court 

of appeals affirmed, and we granted Nelson's petition for 

review. 

II. DISCUSSION

A. Standard of Review

¶18 This review involves whether the harmless error 

doctrine applies to the denial of a defendant's right to 

testify. Whether a particular error is structural and therefore 

not subject to a harmless error review is a question of law for 

our independent review. State v. Travis, 2013 WI 38, ¶9, 347 

Wis. 2d 142, 832 N.W.2d 491. Because we determine that harmless 

error review applies to the denial of the right to testify, we 

must also decide whether the error in this case was harmless. 

This likewise presents a question of law for our independent 

review. State v. Jackson, 2014 WI 4, ¶44, 352 Wis. 2d 249, 841 

N.W.2d 791.

B. Right to Testify

¶19 A criminal defendant has a personal, fundamental right 

to testify and "present his own version of events in his own 

words." Rock v. Arkansas, 483 U.S. 44, 52 (1987); State v. 

Weed, 2003 WI 85, ¶39, 263 Wis. 2d 434, 666 N.W.2d 485. This

right originates from several constitutional provisions: the 

Fourteenth Amendment, which protects a defendant's due process 

right to be heard and offer testimony; the Compulsory Process

Clause of the Sixth Amendment, which protects a defendant's 
No. 2012AP2140-CR 

7

right to call witnesses in her favor; and the Fifth Amendment, 

which protects a defendant's right against compelled testimony 

"unless he chooses to speak in the unfettered exercise of his 

own will." Rock, 483 U.S. at 51-53 (quoting Harris v. New York, 

401 U.S. 222, 230 (1971)) (further citation omitted). 

¶20 The fundamental nature of the right to testify means 

that it is not subject to forfeiture. State v. Ndina, 2009 WI 

21, ¶¶30-31, 315 Wis. 2d 653, 761 N.W.2d 612 ("[A] mere failure 

to object constitutes a forfeiture of [some] right[s] on 

appellate review. . . . [Other] rights are so important to a fair 

trial that . . . [they] may . . . be waived [only] personally 

and expressly."). It may not be waived by a defendant's 

silence. Weed, 263 Wis. 2d 434, ¶39. "[T]o ensure that a . . .

defendant is knowingly, intelligently, and voluntarily waiving 

his or her right to testify," the circuit court must conduct a 

limited colloquy, inquiring as to whether the defendant is aware 

of his or her right against self-incrimination and has discussed 

the right with counsel. Id., ¶¶41, 43. 

¶21 Nelson argues that the circuit court erred in this 

case because, having engaged in the colloquy required by Weed, 

it had no basis to find that she was not validly waiving her 

right against self-incrimination. Because the State does not 

dispute that the circuit court erred, we do not decide that 

issue. At the outset, however, we briefly review the law on 

that point as part of a full discussion of the issue.

¶22 We then proceed to Nelson's argument that denial of 

the right to testify is not subject to harmless error review 
No. 2012AP2140-CR 

8

because it is not necessarily concerned with a defendant's 

chances of acquittal, but rather protects an individual's free 

choice and dignity. While we acknowledge the role of a 

defendant's autonomy in constitutional jurisprudence, we 

conclude that the denial of a defendant's right to testify is 

subject to harmless error review under Fulminante. 

¶23 Finally, having concluded that the alleged error is 

not structural, we assess the testimony Nelson intended to 

provide in the context of the case as a whole, and conclude that 

any error was harmless. 

C. Decision to Testify

¶24 A defendant has the "ultimate authority to make certain 

fundamental decisions regarding the case," including whether to 

testify on his or her own behalf. Jones v. Barnes, 463 U.S. 

745, 751 (1983). He or she retains this right "no matter how 

unwise such a decision." Ortega v. O'Leary, 843 F.2d 258, 261 

(7th Cir. 1988).6 This means that a circuit court cannot refuse 

to allow a defendant to testify solely because the court wishes

to protect the defendant from himself or herself. Quarels v. 

Commonwealth, 142 S.W.3d 73, 79 (Ky. 2004); State v. Rivera, 741 

S.E.2d 694, 703 (S.C. 2013). It also means that a circuit court 

must refrain from unduly influencing a defendant's decision. 

 

6 See also Boyd v. United States, 586 A.2d 670, 673-74 (D.C. 

1991) (quoting People v. Curtis, 681 P.2d 504, 513 (Colo. 1984)) 

(further citation omitted). ("The wisdom or unwisdom of the 

defendant's choice does not diminish his right to make it.").
No. 2012AP2140-CR 

9

¶25 We have addressed this latter concern in the context 

of deciding whether to require circuit courts to engage in a 

colloquy to determine if a defendant is validly waiving the 

right to testify, or to refrain from doing so. First, in Weed, 

we noted "valid" concerns about influencing a decision that 

rests with the defendant. Weed, 263 Wis. 2d 434, ¶41. The 

United States Court of Appeals for the First Circuit succinctly 

summarized those concerns as follows:

To require the trial court to follow a special 

procedure, explicitly telling defendant about, and 

securing an explicit waiver of, a privilege to testify 

. . . could inappropriately influence the defendant to 

waive his constitutional right not to testify, thus 

threatening the exercise of this other, converse, 

constitutionally explicit, and more fragile right.

Siciliano v. Vose, 834 F.2d 29, 30 (1st Cir. 1987). 

Notwithstanding these concerns, we decided to require a 

colloquy, as a "simple and straightforward" exchange would not 

sway a defendant. Weed, 263 Wis. 2d 434, ¶41. In a later 

decision, however, we declined to require circuit courts to 

engage in a similar colloquy for a defendant's decision not to 

testify because "inquiry into whether the defendant is aware of 

his or her corollary right not to testify runs a real risk of 

interfering with defense strategy and inadvertently suggesting 

to the defendant that the court disapproves of his or her 

decision to testify." State v. Denson, 2011 WI 70, ¶65, 335 

Wis. 2d 681, 799 N.W.2d 831.

¶26 Our decision in Weed strikes a balance between 

ensuring that a defendant makes a knowing, intelligent, and 
No. 2012AP2140-CR 

10

voluntary decision about whether to testify and avoiding 

inappropriately influencing that decision. Our later decision 

in Denson illustrates that improperly influencing a decision 

that belongs to the defendant remains a source of concern. 

Therefore, we note that by going beyond the limited colloquy in 

Weed, for instance by inquiring into the "advisability and the 

risk of taking the stand," a circuit court risks going too far. 

Arthur v. United States, 986 A.2d 398, 407 (D.C. 2009). 

¶27 We do not decide, however, whether the circuit court 

erred in this case. The State does not dispute that the circuit 

court erred.7 Therefore, we assume, without deciding, that error 

occurred, and analyze only whether that assumed error should 

result in a new trial.

D. Harmless Error

¶28 Denial of a defendant's constitutional rights does not 

necessarily entitle him or her to a new trial. Chapman v. 

California, 386 U.S. 18, 22 (1967); State v. Kuntz, 160 Wis. 2d 

722, 735-38, 467 N.W.2d 531 (1991). Rather, "an otherwise valid 

conviction should not be set aside if the reviewing court may 

confidently say, on the whole record, that the constitutional 

error was harmless beyond a reasonable doubt." Delaware v. Van 

Arsdall, 475 U.S. 673, 681 (1986). This is the doctrine of 

harmless error.

 

7 This court is not bound by a party's concessions of law.

State v. St. Martin, 2011 WI 44, ¶14 n.6, 334 Wis. 2d 290, 800 

N.W.2d 858. 
No. 2012AP2140-CR 

11

¶29 Wisconsin's harmless error rule appears in Wis. Stat. 

§ 805.18. It is made applicable to criminal proceedings by Wis. 

Stat. § 972.11(1), and prohibits reversal in those cases for 

errors that do not affect the substantial rights of a defendant. 

State v. Armstrong, 223 Wis. 2d 331, 368 & n.36, 588 N.W.2d 606 

(1999). As with its federal counterpart,8 the Wisconsin rule 

accords a "strong presumption" that an error is subject to a 

harmless-error review. See State v. Hansbrough, 2011 WI App 79, 

¶11, 334 Wis. 2d 237, 799 N.W.2d 887 (quoting Neder v. United 

States, 527 U.S. 1, 8 (1999)) (further citation omitted). 

Accordingly, "most constitutional errors can be harmless," and 

only a "very limited class of cases" require automatic reversal. 

Fulminante, 499 U.S. at 306; Johnson v. United States, 520 U.S. 

461, 468 (1997). 

¶30 For the purposes of determining when to apply harmless 

error review, the United States Supreme Court has set forth a 

dichotomy of error types. Fulminante, 499 U.S. at 307-10. 

First, there are trial errors, which "occur[] during 

presentation of the case to the jury and their effect may be 

quantitatively assessed in the context of other 

evidence presented in order to determine whether [they were] 

harmless beyond a reasonable doubt." United States v. GonzalezLopez, 548 U.S. 140, 148 (2006) (quoting Fulminante, 499 U.S. at 

 

8 Wisconsin's harmless error rule is nearly "identical to 

the federal rule," which provides that "[a]ny error, defect, 

irregularity, or variance that does not affect substantial 

rights must be disregarded." State v. Harvey, 2002 WI 93, ¶39, 

254 Wis. 2d 442, 647 N.W.2d 189; Fed. R. Crim. P. 52(a). 
No. 2012AP2140-CR 

12

307-08) (internal quotation marks omitted). The second type of 

error is structural. These "defy analysis by harmless-error 

standards because they affec[t] the framework within which the 

trial proceeds, and are not simply . . . error[s] in the trial 

process itself." Id. (quoting Fulminante, 499 U.S. at 309-10) 

(internal quotation marks omitted). This latter type of error 

is "so intrinsically harmful as to require automatic reversal." 

Neder, 527 U.S. at 7.

¶31 We have embraced this framework in our previous 

decisions. Travis, 347 Wis. 2d 142, ¶54; State v. Harvey, 2002 

WI 93, ¶¶36-39, 254 Wis. 2d 442, 647 N.W.2d 189. In keeping 

with our tradition of interpreting Wisconsin's harmless error 

rule in a similar manner to its federal counterpart, we apply 

that test again today, and conclude that denial of the right to 

testify is subject to harmless error review.

¶32 An error denying the defendant of the right to testify 

on his or her own behalf bears the hallmark of a trial error. 

That is, its affect on the jury's verdict can be "quantitatively 

assessed in the context of other evidence presented in order to 

determine whether its admission was harmless beyond a reasonable 

doubt." Fulminante, 499 U.S. at 308. 

¶33 We recognize that a defendant's testimony may be, on 

the whole, of particular importance to the issues in the case. 

See Rivera, 741 S.E.2d at 704 ("it is difficult to fathom 

anything more logically connected to the fundamental issue" in a 

case "than a defendant's own testimony about the [crime]"). 

However, this does not make its absence incapable of assessment. 
No. 2012AP2140-CR 

13

We agree with the following position of the Tennessee Supreme 

Court:

In some cases, the defendant's testimony would have no 

impact, or even a negative impact, on the result of 

trial. Likewise, in some cases, denial of a 

defendant's right to testify may be devastating to the 

defense. However, under such circumstances, a 

reviewing court will simply conclude that the error 

was not harmless beyond a reasonable doubt. The fact 

that reversal may be required in some cases is no 

reason to eschew the harmless error doctrine entirely 

when the error involved is clearly of a trial, rather 

than a structural nature. 

Momon v. State, 18 S.W.3d 152, 166 (Tenn. 1999) (internal 

citations and internal quotation marks omitted). Stated 

otherwise, denying a defendant the right to testify is not the 

type of error, "the effect[] of which [is] inherently elusive, 

intangible, and [therefore] not susceptible to harmless error 

review." Palmer v. Hendricks, 592 F.3d 386, 399 (3d Cir. 2010). 

Accordingly, harmless error review applies.

¶34 We also observe that, as with other errors in the 

"trial error" category, the denial of a defendant's right to 

testify occurs at a discrete point in the trial. By contrast, 

errors that are structural permeate the entire process. These 

include a complete denial of counsel, Gideon v. Wainwright, 372 

U.S. 335, 344 (1963); a denial of counsel of defendant's choice, 

Gonzalez-Lopez, 548 U.S. at 150; a biased judge, Tumey v. Ohio, 

273 U.S. 510, 534 (1927); racial discrimination during jury 

selection, Vasquez v. Hillery, 474 U.S. 254, 263 (1986); and 

denial of self-representation, McKaskle v. Wiggins, 465 U.S. 

168, 177-78 n.8 (1984). Neder, 527 U.S. at 8. A defective 
No. 2012AP2140-CR 

14

reasonable doubt instruction is also structural because it 

"vitiates all the jury's findings" by "erecting a presumption 

regarding an element of the offense." Sullivan v. Louisiana, 

508 U.S. 275, 280-81 (1993).

¶35 Our conclusion is consistent with the majority of 

other jurisdictions that on direct appeal have applied harmless 

error review to a circuit court's denial of a defendant's right 

to testify. Quarels, 142 S.W.3d at 82; Momon, 18 S.W.3d at 166; 

People v. Solomon, 560 N.W.2d 651, 655 (Mich. Ct. App. 1996).9

Federal courts that have considered the issue in the context of 

habeas petitions have reached a similar result. Gill v. Ayers, 

342 F.3d 911, 921-22 (9th Cir. 2003); Ortega, 843 F.2d at 262; 

Wright v. Estelle, 549 F.2d 971, 972, 974 (5th Cir. 1977). And,

in the context of ineffective assistance of counsel claims, we 

note that a defendant does not automatically receive a new trial 

when deprived of the right to testify; rather, a defendant must 

proceed under the framework of Strickland v. Washington, 466 

U.S. 668 (1984). State v. Flynn, 190 Wis. 2d 31, 56, 527 N.W.2d 

343 (Ct. App. 1994). That a defendant must show that the denial 

of his or her right to testify was prejudicial, then, is not a 

new concept.

 

9 We note that in Arthur v. United States, 986 A.2d 398 

(D.C. 2009), which held that the denial of a defendant's right 

to testify is not amendable to harmless error, the court seemed 

capable of assessing the effect of such an error in the context 

of other evidence. Id. at 416 (there was "a reasonable 

probability that but for the violation of appellant's right to 

testify, the jury would have had a reasonable doubt of his 

guilt"). 
No. 2012AP2140-CR 

15

¶36 Nelson attempts to avoid the result Fulminante

dictates by employing a somewhat different test. She contends 

that the harmless error rule should not apply because the right 

to testify "is a right that when exercised usually increases the 

likelihood of a trial outcome unfavorable to the defendant, [and 

therefore] its denial is not amenable to 'harmless error'

analysis." McKaskle, 465 U.S. at 177 n.8. Drawing on McKaskle, 

which held that the right to self-representation is not subject 

to harmless error review, she argues as follows:

Like self-representation, the right to testify 

cannot be harmless because it is a right to make a 

personal decision that is founded on the respect for 

free choice and the human dignity of the individual 

citizen. (Citation omitted.) The denial of that 

right is structural, not because it is born from the 

belief that by doing so the defendant will have a 

better chance of acquittal, but because it is born 

from "the axiomatic notion that each person is 

ultimately responsible for choosing his own fate

. . ." Chapman v. United States, 553 F.2d 886, 891 

(5th Cir. 1977).

¶37 We agree with Nelson that certain rights serve 

purposes other than to determine the guilt or innocence of a 

defendant. For instance, Nelson correctly notes that the right 

of self-representation is grounded in "respect for the 

individual," and that it "exists to affirm the accused's 

individual dignity and autonomy." Faretta v. California, 422 

U.S. 806, 834 (1975) (quoting Illinois v. Allen, 397 U.S. 337, 

350-51 (1970) (Brennan, J., concurring)); State v. Klessig, 211 

Wis. 2d 194, 215-16, 564 N.W.2d 716 (1997) (quoting McKaskle, 

465 U.S. at 178 (Abrahamson, C.J., concurring)). 
No. 2012AP2140-CR 

16

¶38 Principles of self-determination also underlie the 

requirement that a defendant make certain decisions, such as 

whether to accept a plea, whether to try the case to a jury, and 

whether he or she will be present at trial.

10 Richard J. Bonnie, 

The Competence of Criminal Defendants: Beyond Dusky and Drope, 

47 U. Miami L. Rev. 539, 553 (1993). 

¶39 Additionally, autonomy has proven an important 

consideration in certain areas of constitutional jurisprudence, 

including reproductive rights,11 search and seizure,12 and selfincrimination.13 Michael Heise, Equal Educational Opportunity 

and Constitutional Theory: Preliminary Thoughts on the Role of 

School Choice and the Autonomy Principle, 14 J.L. & Pol. 411, 

452 (1998). We cannot conclude, however, that any of this means 

 

10 See Jones v. Barnes, 463 U.S. 745, 751 (1983).

11 Carey v. Population Servs. Int'l, 431 U.S. 678, 687 

(1977) (discussing the "constitutional protection of individual 

autonomy in matters of childbearing"); Griswold v. Connecticut, 

381 U.S. 479, 485 (1965) (referencing "penumbral rights of 

'privacy and repose'"); Roe v. Wade, 410 U.S. 113, 152 (1973) 

("right of personal privacy, or a guarantee of certain areas or 

zones of privacy, does exist under the Constitution").

12 Terry v. Ohio, 392 U.S. 1, 9 (1968) (quoting Union Pac. 

R. Co. v. Botsford, 141 U.S. 250, 251 (1891) ("No right is held 

more sacred, or is more carefully guarded, by the common law, 

than the right of every individual to the possession and control 

of his own person, free from all restraint or interference of 

others, unless by clear and unquestionable authority of law.").

13 Miranda v. Arizona, 384 U.S. 436, 460 (1966) ("the 

constitutional foundation underlying the privilege [against 

self-incrimination] is the respect a government——state or 

federal——must accord to the dignity and integrity of its 

citizens . . . to respect the inviolability of the human 

personality").
No. 2012AP2140-CR 

17

that Nelson is automatically entitled to a new trial, for the 

reasons we now explain.

¶40 First, while autonomy is an important constitutional 

value, the test of Fulminante makes no mention of the purpose of 

the right or the interests it serves. Rather, it defines 

structural error by only two characteristics, the timing of the 

error and its capacity for assessment. See Gonzalez-Lopez, 548 

U.S. at 149 n.4 ("it is hard to read [Fulminante] as doing 

anything other than dividing constitutional error into two 

comprehensive categories"). 

¶41 Second, although McKaskle, which was decided before 

Fulminante, relied on the "irrelevance of harmlessness" in 

concluding that a defendant's right to self-representation is 

structural, McKaskle is distinguishable. Unlike denial of a 

defendant's right to testify, denial of the right to selfrepresentation permeates the entire trial. Therefore, McKaskle

comes squarely within Fulminante's description of a structural 

error. As such, we see no reason to depart from the Fulminante

framework.

¶42 Finally, accepting Nelson's test would divorce the 

doctrine of harmless error from its purpose. Harmless error 

developed from the criticism that "[r]eversal for error, 

regardless of its effect on the judgment, encourages litigants 

to abuse the judicial process and bestirs the public to ridicule 

it." Neder, 527 U.S. at 18 (quoting R. Traynor, The Riddle of 

Harmless Error 50 (1970)). Its application does not "reflect[] 

a denigration of the constitutional rights involved." Rose v. 
No. 2012AP2140-CR 

18

Clark, 478 U.S. 570, 577 (1986). Rather, it "strikes the 

appropriate balance between the judicial system's interest in 

obtaining reliable results and the system's competing interest 

in having litigation end at some point." Momon, 18 S.W.3d at 

167. In other words, it furthers "the principle that the 

central purpose of a criminal trial is to decide the factual 

question of the defendant's guilt or innocence." Id. at 165 

(quoting Van Arsdall, 475 U.S. at 681). As such, it makes sense 

to define the structural/trial error dichotomy by an error's 

capacity for assessment, rather than the nature or importance of 

the right the error affected.

¶43 For these reasons, we conclude that the denial of a 

defendant's right to testify is subject to harmless error 

review. We now apply that rule to the alleged error in the 

present case. 

E. Application

¶44 In order for an error to be harmless, the State, as 

the party benefitting from the error, must prove that it is 

"clear beyond a reasonable doubt that a rational jury would have 

found the defendant guilty absent the error." Harvey, 254 

Wis. 2d 442, ¶46 (quoting Neder, 527 U.S. at 18); State v. 

LaCount, 2008 WI 59, ¶85, 310 Wis. 2d 85, 750 N.W.2d 780

(further citations omitted). Stated otherwise, we must be 

satisfied "not that the jury could have convicted the defendant 

(i.e., sufficient evidence existed to convict the defendant), 

but rather that the jury would have arrived at the same verdict 
No. 2012AP2140-CR 

19

had the error not occurred." State v. Martin, 2012 WI 96, ¶45, 

343 Wis. 2d 278, 816 N.W.2d 270 (internal citation omitted). 

¶45 In Martin, we recently articulated a non-exhaustive 

list of factors that aid in evaluating whether the State has met 

its burden. Id., ¶46. These included the following 

considerations:

the frequency of the error; the importance of the 

erroneously admitted evidence; the presence or absence 

of evidence corroborating or contradicting the 

erroneously admitted evidence; whether the erroneously 

admitted evidence duplicates untainted evidence; the 

nature of the defense; the nature of the State's case; 

and the overall strength of the State's case. 

Id. Because that case involved an erroneous decision to admit 

evidence, and in the present case we assume error because of a 

decision to exclude evidence, Martin's terminology does not 

correspond perfectly to this case. Those factors do, however, 

provide useful ways to look at the effect of an error on the 

trial as a whole. 

¶46 As was the court in Momon, we are persuaded that

"[d]enial of a defendant's right to testify is analogous to 

denial of a defendant's right to effective cross-examination." 

Momon, 18 S.W.3d at 167. "In both instances, the defendant is 

being deprived of the right to present evidence to the jury." 

Id. Accordingly, we conclude that the following formulation 

from Momon, which is based on the language of Van Arsdall, 

correlates well to our pronouncement in Martin:

[C]ourts should consider the following factors when 

determining whether the denial of the right to testify 

is harmless beyond a reasonable doubt: (1) the 
No. 2012AP2140-CR 

20

importance of the defendant's testimony to the defense 

case; (2) the cumulative nature of the testimony; (3) 

the presence or absence of evidence corroborating or 

contradicting the defendant on material points; (4) 

the overall strength of the prosecution's case.

Id. at 168; see Van Arsdall, 475 U.S. at 684; State v. Norman, 

2003 WI 72, ¶48, 262 Wis. 2d 506, 664 N.W.2d 97. We now apply 

those factors to the alleged error in the present case.

¶47 There is no denying that testifying at her own trial 

was important to Nelson. She wanted to recount the events from 

her own perspective, and thought that telling her side of the 

story would make her "feel better." These are not trivial 

concerns. Having one's voice heard is a key element of 

"procedural justice," which is grounded in the concept that if 

people perceive legal process as fair, they are more willing to 

accept legal rules and outcomes with which they do not agree. 

Tom R. Tyler & E. Allen Lind, Handbook of Justice Research in 

Law, 65 (Joseph Sanders & V. Lee Hamilton eds., 2001). However, 

we cannot say that it was important for the purpose of harmless 

error review, which is concerned with the accuracy of the 

verdict. Therefore, to the extent that Nelson would have taken 

the stand and admitted that she engaged in the conduct she was 

accused of, we conclude that the exclusion of that testimony was 

harmless. 

¶48 Nelson also wished to offer a different account of the 

timing of the events and testify that she did not unbuckle 

D.M.'s pants. She did not intend to deny, however, that she had 

sexual intercourse with D.M. on three separate occasions and 

that she knew he was under the age of 16. Considering the trial 
No. 2012AP2140-CR 

21

as a whole, we conclude that the exclusion of this testimony was 

likewise harmless.

¶49 The sole theory of Nelson's defense was to put the 

State to its burden of proving her guilty beyond a reasonable 

doubt.14 Interjecting an alternative version of events may have 

made it more difficult for a jury to find Nelson guilty beyond a 

reasonable doubt. For instance, it could have cast doubt on 

D.M.'s ability to accurately recall the assaults. This does not 

mean, however, that the result would have changed had Nelson 

testified on her own behalf. 

¶50 This is so because the jury could have convicted 

Nelson even if its members did not agree on the timing of the 

events or who unbuckled D.M.'s pants. See State v. Badzinski, 

2014 WI 6, ¶28, 352 Wis. 2d 329, 843 N.W.2d 29 (quoting State v. 

Holland, 91 Wis. 2d 134, 143, 280 N.W.2d 288 (1979)) ("Unanimity 

 

14 Nelson's post-conviction counsel argued that testimony 

disputing that Nelson unbuckled D.M.'s pants and the timing of 

the events could have helped her defense because "if she had 

said that it only happened one time, that's it, and he forced 

himself on me, then she would, if the jury accepted such 

testimony, she clearly would be found not guilty of two of the 

three counts, perhaps found not guilty of the remaining count." 

It is certainly true that "where we have an assertion that it 

was the defendant who did not consent to the intercourse, that 

it was she who was raped by the child, then the issue of her 

consent becomes paramount." State v. Lackershire, 2007 WI 74, 

¶29, 301 Wis. 2d 418, 734 N.W.2d 23. The problem with this 

argument is that Nelson has never claimed that D.M. raped her. 

By considering it, we would be assessing the error not in the 

context of the case as a whole, but in the abstract. 

Additionally, because she does not make this argument on review, 

we need not consider it. Gister v. Am. Family Mut. Ins. Co., 

2012 WI 86, ¶37 n.19, 342 Wis. 2d 496, 818 N.W.2d 880.
No. 2012AP2140-CR 

22

is required only with respect to the ultimate issue of the 

defendant's guilt or innocence of the crime charged, [it] is not 

required with respect to the alternative means or ways in which 

the crime can be committed.") (alteration in Badzinski). The 

only facts the jury needed to find were that Nelson had sexual 

intercourse with a person who had not attained the age of 16 on 

three occasions. Even if the jury believed Nelson's version of 

the events, or could not decide whether to believe Nelson or 

D.M., Nelson's testimony still would have made it more likely 

that those facts were true.

15 In that sense, her testimony was 

cumulative of the evidence the State presented, and bolstered 

its case against her. Because her testimony would have differed 

from the State's evidence only on immaterial points, it would 

not have aided in her defense. 

¶51 Finally, we note the overwhelming strength of the 

prosecution's case. The State presented the testimony from the 

victim's mother and two law enforcement officers, all of whom 

said that Nelson admitted engaging in conduct that was contrary 

to the laws she was charged with violating. The victim himself 

corroborated this testimony. There was not a shred of evidence 

controverting the State's assertion that Nelson had sexual 

intercourse with D.M., who was under the age of 16 at the time. 

Therefore, we have no trouble concluding that the jury would 

 

15 See generally Bruton v. United States, 391 U.S. 123, 139-

140 (1968) (White, J., dissenting) ("the defendant's own 

confession is probably the most probative and damaging evidence 

that can be admitted against him").
No. 2012AP2140-CR 

23

have convicted Nelson even if she took the stand, and that any 

error in preventing her from testifying was harmless.

III. CONCLUSION

¶52 We conclude that harmless error review applies to the 

circuit court's alleged denial of Nelson's right to testify 

because its effect on the outcome of the trial is capable of 

assessment. See Fulminante, 499 U.S. at 307-08. We further

conclude that, given the nature of Nelson's defense and the 

overwhelming evidence of her guilt, the alleged error was 

harmless beyond a reasonable doubt. Accordingly, we affirm the 

decision of the court of appeals.

By the Court.—The decision of the court of appeals is 

affirmed.
No. 2012AP2140-CR.akz

1

¶53 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I join 

the majority opinion which affirms the decision of the court of 

appeals. I write separately and concur, however, because I 

would not assume that the circuit court erred. On this record, 

it is less than clear that the circuit court should have 

concluded that Nelson knowingly, intelligently, and voluntarily 

decided to testify. See State v. Weed, 2003 WI 85, ¶40, 263 

Wis. 2d 434, 666 N.W.2d 485. Nelson's right to testify is 

unquestionably an important right. See Rock v. Arkansas, 483 

U.S. 44, 53 n.10 (1987). Typically, a circuit court would be 

incorrect to deny a defendant that important right. On the 

record in the case at issue, however, given the nature of 

Nelson's defense, the fact that Nelson's testimony would only 

serve to incriminate her, and could, at best, lead to jury 

nullification, and considering Nelson and her counsel's own 

words, the circuit court was not necessarily incorrect. In 

fact, had Nelson taken the stand it would have been well within 

the circuit court's discretion to have precluded the only 

testimony that Nelson wished to offer. See State v. Bjerkaas, 

163 Wis. 2d 949, 960, 472 N.W.2d 615 (Ct. App. 1991) (holding 

that a defendant has no right to urge a jury to nullify 

applicable laws). The circuit court was hard pressed to 

conclude that Nelson indeed knowingly, intelligently, and 

voluntarily reached the conclusion that she wished to testify.

¶54 A defendant's right to testify is not synonymous with 

a defendant's right to say anything he or she would like. Had 

Nelson been allowed to testify she would have been relegated to 
No. 2012AP2140-CR.akz

2

incriminating herself, thus undercutting her defense——that 

being, that the State has not met its burden of proof. Majority 

op., ¶49. The record reflects that the circuit court was not 

convinced that Nelson was making her decision knowingly, 

intelligently, and voluntarily.

¶55 Simply stated, it is not completely clear that Nelson 

did in fact knowingly, intelligently, and voluntarily make a 

decision to testify and incriminate herself given the 

circumstances. Confronted with a less than satisfying exchange 

regarding Nelson's decision about testifying, the court stated: 

As Ms. Larson observed, she's never seen or heard of 

this in 21 years of being a prosecutor. I've never 

run across this kind of a situation either. 

I've tried to do some quick legal research. I 

can't find anything about what a judicial officer is 

to do under these types of circumstances.

But I do know this, that in order for me to 

permit the defendant, any defendant, including 

Ms. Nelson, to testify, I have to make a finding that 

she's waiving her right against self-incrimination 

freely, voluntarily and intelligently and knowingly 

and that she understands her right to either testify 

or not testify.

The court further acknowledged:

And it seems to me that based upon this limited 

colloquy that I've had with Ms. Nelson, I, and when I 

say limited, I think I've thoroughly explored the ins 

and outs of what she wants to testify to, but I can't 

find that Ms. Nelson is intelligently and knowingly 

waiving her right against self-incrimination because 

she wants to testify to things that are completely 

irrelevant to the two things that the state has to 

prove.

Considering the duty to make certain findings regarding her 

decision to testify, the court stated:
No. 2012AP2140-CR.akz

3

I'm also finding that she's -- that she's not 

intelligently and knowingly waiving her right against 

self-incrimination, because based upon the colloquy 

that I've had here with Ms. Bahnson, Angelica Nelson 

is doing this against the advice of her lawyer, at 

least with her lawyer telling her that it's not a good 

idea.

The court understood that "there are some instances in which a 

defendant could be inadvisably taking the witness stand. But it 

would be on elements, issues that are central to the case, that 

is, elements the state has to prove." Specific to this case, 

the court found:

Nelson wants to talk about all sorts of things that 

don't matter. And if she took the witness stand, 

under the circumstances, Ms. Larson could extract from 

Ms. Nelson the admissions that this occurred. So I 

just don't think I can make that finding. So I'm not 

going to let her testify.

Ultimately, the court concluded:

I'm reaffirming my decision and belief that Ms. Nelson 

is not freely -- she's not voluntarily and 

intelligently and knowingly waiving her right against 

self-incrimination, so I'm not going to permit her to 

testify.

¶56 The record reflects that the circuit court did not 

necessarily err in determining that Nelson was not knowingly, 

intelligently, and voluntarily making a decision to testify. 

See Weed, 263 Wis. 2d 434, ¶¶44-46. As such, it is far from 

certain that the circuit court erred when it precluded Nelson 

from offering irrelevant, excludable testimony.

¶57 At most, Nelson's testimony would have invited jury 

nullification. She "'want[ed] to tell what actually happened,'"

that is, Nelson would testify that she did have intercourse with 

D.M., but she wanted to add that "she did not unbuckle D.M.'s 
No. 2012AP2140-CR.akz

4

pants and that the assaults did not happen three days in a row." 

Majority op., ¶15. However, whether she unbuckled his pants or 

he unbuckled his own pants is of no help to Nelson, since 

consent was not an issue in this case. Similarly, whether the 

assaults occurred "three days in a row" is of no assistance to 

Nelson, since the State did not have to prove the exact date or

time of the assaults in order to secure a conviction. Majority 

op., ¶50 (citing State v. Badzinski, 2014 WI 6, ¶28, 352 Wis. 2d 

329, 843 N.W.2d 29); see also Wis. Stat. § 948.02; State v. 

Fawcett, 145 Wis. 2d 244, 250, 426 N.W.2d 91 (Ct. App. 1988). 

Nelson acknowledged that if she were to testify, she would have 

indeed admitted the sexual assaults charged. Id. Her only 

defense was to argue that the State failed to meet its burden of 

proof. Her testimony would have completely unraveled her only 

defense. Additionally, the circuit court would have been within 

its discretion to preclude the only testimony that Nelson wanted 

to offer, see Bjerkaas, 163 Wis. 2d at 960, and Nelson would 

have been left with only inculpatory testimony. On this record, 

the circuit court was hard pressed to conclude that Nelson was 

knowingly, intelligently, and voluntarily making the decision to 

testify.

¶58 The circuit court judge was between a rock and a hard 

place. If Nelson was allowed to testify, the court could be 

criticized for not insuring that she was knowingly, 

intelligently, and voluntarily deciding to testify, see Weed, 

263 Wis. 2d 434, ¶40, and Nelson's counsel could be challenged 

as ineffective. See State v. Arredondo, 2004 WI App 7, ¶¶27-29, 
No. 2012AP2140-CR.akz

5

269 Wis. 2d 369, 674 N.W.2d 647. If Nelson was not allowed to 

testify, the court could be viewed as depriving Nelson of her 

fundamental right to testify. See Harris v. New York, 401 

U.S. 222, 225 (1971). In this case, there was no easy answer. 

I am duly concerned that on this record, had Nelson been allowed 

to testify we would be left to second-guess the circuit court's 

decision in that regard and likely reviewing a claim of 

ineffective assistance of counsel. Here, the circuit court 

seems to have done the best it could given the circumstances, 

and did not err in protecting Nelson from her own incriminating 

testimony. 

¶59 As a result, while I conclude that it is indeed a rare 

circumstance that the circuit court should be allowed to 

preclude a defendant from testifying, the facts here indicate 

that the circuit court did not err in so concluding that Nelson 

was not knowingly, intelligently, and voluntarily making her 

decision to testify.

¶60 For the foregoing reasons, I concur.
No. 2012AP2140-CR.ssa

1

¶61 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). The 

record is clear in the instant case that the defendant wanted to 

testify. Although the right to testify is personal to the 

defendant and belongs exclusively to the defendant, the 

defendant both personally and through counsel (who advised the 

defendant against testifying) unequivocally asserted that she 

wanted to testify. 

¶62 By prohibiting the defendant from getting on the stand 

and testifying on her own behalf, the circuit court denied the 

defendant the right to decide whether to testify, a decision 

that was hers alone to make. Jones v. Barnes, 463 U.S. 745, 751 

(1983). 

¶63 The majority opinion assumes that the circuit court 

erred when it refused to allow the defendant to tell her side of 

the story.1 The concurrence concludes that the circuit court did 

not err in precluding the defendant from testifying.2

¶64 I would hold that the circuit court erred. 

¶65 The majority opinion asserts the assumed error is 

subject to harmless-error analysis.3 Many courts have held that 

the denial of a criminal defendant's right to testify is subject 

to harmless-error analysis.4 Other courts, however, refuse to 

 

1 Majority op., ¶27.

2 Concurrence, ¶55-56.

3 Majority op., ¶5.

4 Majority op., ¶35.
No. 2012AP2140-CR.ssa

2

follow this principle and instead hold that the denial of the 

right to testify is not subject to harmless-error analysis.5

¶66 Whether an error is subject to harmless-error analysis 

is a question of law this court decides independently of the 

circuit court or court of appeals, benefiting from their 

analyses.6 

¶67 I would hold that the error is not subject to 

harmless-error analysis. 

¶68 A defendant has a fundamental right to testify. The 

United States Supreme Court has declared that the United States 

Constitution guarantees criminal defendants the right to 

testify, locating the right in the Fifth, Sixth, and Fourteenth 

Amendments of the Constitution.7 The right to testify is 

 

5 See, e.g., State v. Rivera, 741 S.E.2d 694, 706 (S.C. 

2013) ("[A] trial court's improper refusal to permit a defendant 

to testify . . . is not amenable to harmless-error analysis."); 

State v. Dauzart, 769 So. 2d 1206, 1210 (La. 2000) ("[D]enial of 

the accused's right to testify is not amenable to harmless-error 

analysis."); State v. Rosillo, 281 N.W.2d 877, 879 (Minn. 1979) 

("[T]he right to testify is such a basic and personal right that 

its infraction should not be treated as harmless error.").

6 State v. Travis, 2013 WI 38, ¶9 & n.9, 347 Wis. 2d 142, 

832 N.W.2d 491.

7 "The opportunity to testify is . . . a necessary corollary 

to the Fifth Amendment's guarantee against compelled testimony." 

Rock v. Arkansas, 483 U.S. 44, 52 (1987). The Sixth Amendment's 

Compulsory Process Clause guarantees a criminal defendant "the 

right to call witnesses in his [or her] favor." Id. (internal 

quotation marks omitted). The Fourteenth Amendment assures 

defendants the "right to be heard and to offer testimony" as a 

part of due process. Id. at 51.

See also State v. Albright, 96 Wis. 2d 122, 128, 291 

N.W.2d 487 (1980).
No. 2012AP2140-CR.ssa

3

embedded in the Sixth Amendment right to present a defense and 

to self-representation.8 The right to testify is one of the 

rights that "are essential to due process of law in a fair 

adversary process."9 

¶69 The Wisconsin Constitution explicitly states that 

criminal defendants "shall enjoy the right to be heard."10 

¶70 The question before the court in the instant case is 

whether a defendant's fundamental constitutional right to 

testify is so fundamental to a fair trial that its infraction 

cannot be treated as harmless error. A limited class of 

fundamental constitutional errors exists that defies harmlesserror analysis. The labels "structural error" and "nonstructural error" have been assigned to constitutional errors. 

If the error is labeled "structural," then the harmless error 

analysis is not applied; reversal is automatic. These errors 

are "so intrinsically harmful as to require automatic 

reversal . . . without regard to their effect on [a trial's]

outcome."

11 If the error is labeled "non-structural," then the 

harmless-error analysis is applied.

 

8 Rock, 483 U.S. at 51.

9 Id.

10 Wis. Const. art. I, § 7. See State v. Denson, 2011 WI 

70, ¶¶49-56, 335 Wis. 2d 681, 799 N.W.2d 831 (noting the 

protections provided by both the Wisconsin and federal 

constitutions for the right to testify and its corollary, the 

right not to testify).

11 See Neder v. United States, 527 U.S. 1, 7 (1999).
No. 2012AP2140-CR.ssa

4

¶71 Most constitutional errors are labeled non-structural. 

The United States Supreme Court has, however, enumerated several 

fundamental rights the denial of which is prejudicial per se and 

not subject to harmless-error analysis, including the right of 

self-representation,

12 the right to counsel,13 and the right to an 

impartial judge.14 The United States Supreme Court has not ruled 

on whether harmless-error analysis applies to denial of a 

defendant's right to testify.15

¶72 I conclude that the defendant's right to testify falls 

within this category of fundamental rights not subject to 

harmless-error analysis. I reach this conclusion for several 

reasons.

 

12 McKaskle v. Wiggins, 465 U.S. 168, 177-78 & n.8 (1984).

13 Gideon v. Wainwright, 372 U.S. 335, 343 (1963).

14 Tumey v. Ohio, 273 U.S. 510, 535 (1927).

15 Although one Wisconsin court of appeals case asserts that 

the United States Supreme Court has determined that harmlesserror analysis applies to the deprivation of the right to 

testify, see State v. Flynn, 190 Wis. 2d 31, 56, 527 N.W.2d 343 

(Ct. App. 1994), the Flynn case cited Crane v. Kentucky, 476 

U.S. 683 (1986), for this proposition. Crane did not assert 

that harmless-error analysis applied. Rather, in Crane, the 

parties agreed that harmless-error analysis applied and the 

Court did not reach the issue. Also, the case involved the 

prosecutor's foreclosing the defendant's efforts to admit 

testimony on the environment in which police secured his 

confession, rather than foreclosing the defendant's testimony in 

its entirety.

In addition, the Flynn case itself can be distinguished 

because Flynn concerned an ineffective assistance of counsel 

claim, which has a different standard for determining prejudice 

than a harmless-error analysis.
No. 2012AP2140-CR.ssa

5

¶73 First, the right to testify is meaningless if the 

defendant is not allowed to actually testify. Taking the stand 

is a defendant's opportunity to face his or her accusers, to 

tell his or her story, and to attempt to persuade those who will 

make a decision that will have a profound effect on his or her 

life and liberty. A defendant's opportunity to conduct his or 

her own defense by calling witnesses is incomplete if the 

defendant may not present himself or herself as a witness.16

¶74 "[T]he most important witness for the defense in many 

criminal cases is the defendant."

17 "[T]he right to speak for 

oneself entails more than the opportunity to add one's voice to 

a cacophony of others."

18

 Barring a criminal defendant from 

testifying is not comparable to excluding a witness's testimony 

or particular evidence to which harmless-error analysis applies. 

The defendant is a very special witness. "[T]here [i]s no 

rational justification for prohibiting the sworn testimony of 

the accused, who above all others may be in a position to meet 

the prosecution's case."19 

¶75 Second, the right to testify is intertwined and 

connected with the right of self-representation. Denial of the 

right of self-representation is not subject to harmless-error 

analysis. In Faretta v. California, 422 U.S. 806 (1975), the

 

16 Rock, 483 U.S. at 52.

17 Id.

18 McKaskle, 465 U.S. at 177.

19 Ferguson v. Georgia, 365 U.S. 570, 582 (1961) (emphasis 

added). See also Rock, 483 U.S. at 50 (quoting Ferguson).
No. 2012AP2140-CR.ssa

6

United States Supreme Court vacated the conviction of a 

defendant who was not permitted to appear pro se. The Court did 

not analyze whether the defendant would have fared better with

or without appointed counsel. 

¶76 The right of a defendant to testify, according to Rock 

v. Arkansas, 483 U.S. 44, 52 (1987), is "[e]ven more fundamental 

to a personal defense than the right of self-representation." 

¶77 If a defendant's right to testify is even more 

fundamental than the defendant's right of self-representation 

and the right of self-representation is not subject to harmlesserror analysis, it seems to follow that denial of the right to 

testify is not subject to harmless-error analysis.

¶78 Third, the error in the present case of barring the 

defendant from testifying falls within the various formulations 

of an error not subject to harmless-error analysis. The test 

for determining whether a fundamental error is subject to 

harmless-error analysis is expressed in the case law in the 

following variety of ways. An error is not subject to harmlesserror analysis if:

• The error is a "defect affecting the framework within 

which the trial proceeds, rather than simply an error 

in the trial process itself."

20 

• The error "infect[s] the entire trial process,"

21 and 

renders the entire trial "fundamentally unfair."22

 

20 Arizona v. Fulminante, 499 U.S. 279, 310 (1991).

21 Brecht v. Abrahamson, 507 U.S. 619, 630 (1993).
No. 2012AP2140-CR.ssa

7

• The error deprives a defendant of "basic protections"

without which "a criminal trial cannot reliably serve 

its function as a vehicle for determination of guilt 

or innocence, and no criminal punishment may be 

regarded as fundamentally fair."

23

• The error seriously affects "the fairness, integrity 

or public reputation of judicial proceedings and [is] 

so fundamental that [it is] considered per se 

prejudicial."

24

• The error is "so basic to a fair trial" that it "can 

never be treated as harmless error."25

• The error undermines a right founded on the respect 

for free choice and the human dignity of the 

individual.26 

 

22 Neder v. United States, 527 U.S. 1, 8 (1999) (citing Rose 

v. Clark, 478 U.S. 570, 577 (1986) (internal quotation marks and 

citation omitted); Fulminante, 499 U.S. at 309-310. See also

State v. Ford, 2007 WI 138, ¶42, 306 Wis. 2d 1, 742 N.W.2d 61 

(citing Neder).

23 Rose v. Clark, 478 U.S. 570, 577-78 (1986) (citation 

omitted).

24 State v. Ford, 2007 WI 138, ¶42, 306 Wis. 2d 1, 742 

N.W.2d 61 (quoting Shirley E., 2006 WI 129, ¶62, 298 Wis. 2d 1, 

724 N.W.2d 623).

25 Chapman v. California, 386 U.S. 18, 23 (1967).

26 The decision "must be honored out of . . . respect for 

the individual which is the lifeblood of the law." Faretta v. 

California, 422 U.S. 806, 834 (1975) (quoting Illinois v. Allen, 

397 U.S. 337, 350-51 (1970) (Brennan, J., concurring) (internal 

quotation marks omitted)). See also Chapman v. United States, 

553 F.2d 886, 891 (5th Cir. 1977).
No. 2012AP2140-CR.ssa

8

• The error undermines the concept of each person being 

ultimately responsible for choosing his or her own 

fate.

27

• The error produces consequences that are 

unquantifiable, indeterminate, and unmeasurable.28 

¶79 The denial of the right to testify fits within each of 

these descriptions of an error to which harmless-error analysis 

does not apply. The error in the present case defies harmlesserror review. It is too difficult to determine the effect of a 

defendant's taking or not taking the stand on the trial's 

outcome. 

¶80 Before I conclude, let me address two additional 

points raised in the majority opinion and concurrence.

¶81 First, I agree with the concurrence that the circuit 

court was in a difficult position, caught between protecting the 

defendant's two rights——the right to testify and the right not 

to testify.29 

¶82 The circuit court obviously thought it ill-advised for 

the defendant to testify. The concurrence agrees. That the 

defendant may be ill-advised or unwise to testify is not the 

legal standard for determining whether the circuit court erred 

in barring the defendant from testifying. A court cannot 

 

27 See Chapman v. United States, 553 F.2d 886, 891 (5th Cir. 

1977).

28 Neder, 527 U.S. at 11; Sullivan v. Louisiana, 508 U.S. 

275, 281-82 (1993).

29 A limited colloquy is advised when a defendant elects to 

testify. Denson, 335 Wis. 2d 681, ¶63. 
No. 2012AP2140-CR.ssa

9

substitute its judgment for the defendant's.30 The defendant 

must have the right 

as he suffers whatever consequences there may be——to 

the knowledge that it was the claim that he put 

forward that was considered and rejected, and to the 

knowledge that in our free society, devoted to the 

ideal of individual worth, he was not deprived of his 

free will to make his own choice, in his hour of 

trial, to handle his own case.

United States v. Dougherty, 473 F.2d 1113, 1128 (D.C. Cir. 

1972).

¶83 Second, the relevance of the defendant's testimony 

does not dictate a court's decision to bar the defendant from 

taking the stand to testify. The majority opinion speculates 

that the information the defendant desired to present in her 

testimony was irrelevant.31 The circuit court concluded that the 

defendant's testimony was irrelevant to the issue of guilt or 

innocence. The concurrence agrees.32

¶84 Relevance, or lack thereof, may be the basis for 

objecting to a defendant's testimony and for sustaining 

objections to the defendant's testimony once the defendant takes 

the stand. The accused's right to testify is not unqualified 

and "'may, in appropriate cases, bow to accommodate other 

legitimate interests in the criminal trial process. . . .'" 

Rock, 483 U.S. at 55 (quoted source omitted). But a court 

 

30 See Faretta, 422 U.S. at 835-36 (asserting that a court's 

assessment of a defendant's legal acumen is irrelevant to its 

evaluation of a defendant's decision to self-represent).

31 Majority op., ¶50.

32 Concurrence, ¶¶55-56.
No. 2012AP2140-CR.ssa

10

should not use the relevance of a defendant's testimony to 

justify barring the defendant from taking the stand at all. We 

cannot know whether her testimony is relevant before she 

testifies.

¶85 In the instant case, the defendant's testimony may 

well have been relevant. As the majority opinion acknowledges, 

if the defendant's testimony asserts that "it was the defendant 

who did not consent to the intercourse, that it was she who was 

raped by the child, then the issue of her consent becomes 

paramount." Majority op., ¶49 n.14 (quoting State v. 

Lackershire, 2007 WI 74, ¶29, 301 Wis. 2d 418, 734 N.W.2d 23). 

Because the defendant was prohibited from testifying, the jury 

was prevented from evaluating her version of the events and 

whether her cognitive and intellectual limitations played a role 

in her ability to consent. 

¶86 For the reasons set forth, I conclude that the circuit 

court erred in depriving the defendant of the right to testify 

under the circumstances of the present case and the error cannot 

be subject to harmless-error analysis. The defendant in the 

instant case is entitled to reversal of the conviction. 

¶87 For the foregoing reasons, I dissent.

¶88 I am authorized to state that Justice ANN WALSH 

BRADLEY joins this dissent.
No. 2012AP2140-CR.ssa

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