[molson]

This issue caused me much consternation years ago (especially because I was figuring it all out as I went).

In my state (and I think this was relatively unique in states at the time when it came up, no idea if that's still true), a defendant can't be found to have waived the right to testify unless the record affirmatively shows he was aware he had that right, and also was aware of his authority to decide whether to testify, no matter what his attorney wanted him to do.

So in that situation, if the court doesn't put that advisement on the record, the state could still potentially win an ineffective assistance of counsel claim (where it's the defendant's burden to prove a constitutional violation), but it's impossible for the state to win the merits of a "violation of right to testify" issue unless the defendant's awareness of his right is evident somewhere else in the record; and then the conviction is vacated unless the state can prove that error is harmless. So the state has to make sure to remind the court to give that warning in the record, if they drop the ball on that.

Then you have to untie all that when the case gets to a federal habeas proceeding, where federal constitutional law as recognized by the United States Supreme Court applies, and sometimes review under that standard is less stringent than what the state courts are doing.

So that was probably 2-3 years in state appeals, another year or two in the federal habeas litigating just that claim, which all could have been avoided if the judge just said, "hey, you have this right". So they're better about doing that now.

There's a lot of boxes to check to make sure this all goes right (which is a feature, not a bug). And I know that can be hard in your normal case where where the trial attorneys and judge are doing everything on the fly and the appellate and habeas attorneys get to sit back with more time on their hands and carefully figure out all the ways everybody fucked up at trial.