At least three justices of the Supreme Court of the United states think so. The three (Sotomayor, Ginsburg, and Kagan) dissented from the court’s denial of certiorari in Reeves v. Alabama last week. Reeves had challenged his death sentence on the ground that his counsel had been ineffective in investigating and presenting potential mitigation evidence. He presented substantial evidence on the claim but did not call his former lawyer to testify. The Alabama high court held (or seemed to hold) that the failure to call trial counsel automatically doomed the ineffective claim: a rule that Wisconsin has followed at least since 1979’s State v. Machner.
Reeves petitioned for cert, arguing that the requiring trial counsel’s testimony is contrary to Strickland v. Washington. Interestingly, the state did not respond that such a rule was valid, instead contending that the Alabama court had not really applied it. From the dissent:
There can be no dispute that the imposition of a categorical rule that counsel must testify in order for a petitioner to succeed on a federal constitutional ineffective-assistance-of-counsel claim contravenes our decisions requiring an objective inquiry into the adequacy and reasonableness of counsel’s performance based on the full record before the court. Even Alabama does not defend such a rule….
This Court has never, however, required that a defendant present evidence of his counsel’s actions or reasoning in the form of testimony from counsel, nor has it ever rejected an ineffective-assistance claim solely because the record did not include such testimony. Rather, Strickland and its progeny establish that when a court is presented with an ineffective-assistance-of-counsel claim, it should look to the full record presented by the defendant to determine whether the defendant satisfied his burden to prove deficient performance. The absence of counsel’s testimony may make it more difficult for a defendant to meet his burden, but that fact alone does not absolve a court of its duty to look at the whole record and evaluate the reasonableness of counsel’s professional assistance in light of that evidence.
Per the petition, Wisconsin joins only Alabama, Texas, and the Eleventh Circuit in requiring trial counsel testimony, with five federal circuits on the other side of the split. (In fact, the Seventh Circuit has upheld a habeas grant to a Wisconsin inmate who declined to call trial counsel, despite the state’s contrary rule.) SCOTUS has declined, this time, to decide whether the rule is constitutional, but it’s worth keeping in mind that the question is out there.
Machner may not be a “categorical rule.” It applies only to determine deficient performance. In at least one case, where the Court could not conceive of a strategic ground for counsel’s omission (failure to object at sentencing to a breach of the plea agreement), SCOW granted relief (a new sentencing) without testimony from trial counsel. State v. Smith, 207 Wis.2d 258 (1997).
However, in footnote 11 of Smith, the court notes that the State conceded deficient performance, and in footnote 13 the court states that when “the State argues that defense counsel’s failure to object to a recommendation that causes a material and substantial breach of the plea agreement was a strategic decision by the defense counsel … postconviction counsel would have to meet his or her burden at a Machner hearing.” So I think there is a good argument that Machner et al. categorically require attorney testimony to prove the deficient performance prong of an IAC claim, the same approach that the dissent rejects in Reeves.
While we’re at it, the Wisconsin court of appeals has recognized a narrow exception where trial counsel is for some reason unavailable to testify, in State v. Lukasik (counsel had died before the hearing in that case). However, even this exception states its own categorical rule that a defendant’s testimony cannot, by itself, carry the burden to show deficient performance. This is probably often true, practically, given the courts’ typical reluctance to credit defendants; but enshrined as a principle of law it’s also clearly contrary to the view expressed above that a court must simply evaluate the record as a whole.