(concurring in part, dissenting in part) — I write separately to indicate my belief that the majority correctly invokes the prevailing rule: Where a defendant is prevented from testifying by his attorney’s deficient performance, he or she should make an offer of proof outlining what the testimony would have been, so the trial court and then the reviewing court can assess its effect on the outcome. I would, however, remand for a hearing on that issue.
The right to testify is indeed fundamental, and is explicitly protected by the federal and state constitutions. See, e.g., Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987); State v. Thomas, 128 Wn.2d 553, 561-62, 910 P.2d 475 (1996); Wash. Const, art. I, § 22. Robinson has established that his attorney prevented him from testifying. Robinson has thus established deficient performance. He argues that because the right to testify is fundamental, the attorney’s conduct in preventing him from testifying is ineffective assistance per se, and that the usual showing of prejudice under Strickland17 is unnecessary. For this proposition he relies on United States v. Butts, 630 F. Supp. 1145, 1148-49 (D. Me. 1986), which so held.
The per se rule adopted hy Butts has, however, been criticized in a host of cases. See People v. Solomon, 560 N.W2d 651, 656 (Mich. Ct. App. 1996) (collecting cases and concluding Butts is an anomaly); State v. Arguelles, 921 P.2d 439, 442 (Utah 1996) (same); United States v. Tavares, 100 F.3d 995, 998 (D.C. Cir. 1996), cert. denied, 520 U.S. 1160, 117 S. Ct. 1344, 137 L. Ed. 2d 502 (1997); LaVigne v. State, 812 P.2d 217, 220 (Alaska 1991); State v. Flynn, 190 Wis. 2d 31, 527 N.W.2d 343, 351-52 (1994), review denied, 531 N.W.2d 326 (Wis. 1995), cert. denied, 514 U.S. 1030, 115 S. Ct. 1389, 131 L. Ed. 2d 241 (1995). In all of these cases, and many *540others, courts have held that harmless error analysis applies to the denial of the right to testify.
In fact, we know of only one other jurisdiction that systematically requires a new trial whenever a defendant has been denied the right to testify. See State v. Walen, 563 N.W.2d 742, 751 n.4 (Minn. 1997) (citing State v. Rosillo, 281 N.W.2d 877, 879 (Minn. 1979), which relied on Seth Dawson, Note, Due Process v. Defense Counsel’s Unilateral Waiver of the Defendant’s Right to Testify, 3 Hastings Const. L.Q. 517 (1976)).
Division II of this court, however, recently appeared to align itself with that position. In re Detention of Haga, 87 Wn. App. 937, 943 P.2d 395 (1997) involved a civil commitment proceeding. Haga wished to testify about his honesty and the validity of some expert testimony. His attorney was opposed to this strategy, and expressed concerns about the proposed testimony’s relevance as well as Haga’s competence and ability to testify truthfully. The court refused to permit Haga to “override” his counsel’s decision, and did not allow Haga to testify. Quoting People v. Robles, 2 Cal. 3d 205, 215, 466 P.2d 710 (1970), Division II stated that when “ ‘a defendant insists that he wants to testify, he cannot be deprived of that opportunity.’ ” Haga, 87 Wn. App. at 940.
The Haga court concluded that denial of such an opportunity is not subject to harmless error analysis, citing United States v. Martinez, 883 F.2d 750, 770 (9th Cir. 1989) and Luce v. United States, 469 U.S. 38, 42, 105 S. Ct. 460, 83 L. Ed. 2d 443 (1984), for the proposition that it is difficult for an appellate court to analyze the impact of an error that causes a defendant not to testify. See Martinez, 883 F.2d at 770 (Reinhardt, J., dissenting);18 Luce, 469 U.S. at 42. The Luce court noted that an “appellate court could not logically term ‘harmless’ an error that presumptively kept the defendant from testifying.” Luce, 469 U.S. at 42. *541The issue in Luce was whether a nontestifying defendant could seek reversal on the basis that the trial court improperly admitted impeachment evidence against him. The court held he could not, noting that without the substance of the defendant’s testimony, no court could conclude what impact the potentially improper admission of impeachment evidence would have had. See Luce, 469 U.S. at 41-43. This reasoning actually supports the majority here, implying as it does that when the substance of the defendant’s testimony is available, such a question can indeed be evaluated.
As previously discussed, most courts hold that where a court prevents a defendant from testifying, reversal is required unless this constitutional error is harmless beyond a reasonable doubt. See, e.g., Solomon, 560 N.W.2d at 655-56, and cases there cited; Ortega v. O’Leary, 843 F.2d 258, 262 (7th Cir. 1988); Wright v. Estelle, 549 F.2d 971, 974 (5th Cir. 1977), opinion adhered to on rehearing, 572 F.2d 1071 (5th Cir. 1978); see also State v. Jones, 101 Wn.2d 113, 124-25, 677 P.2d 131 (1984) (erroneous admission of ER 609 impeachment evidence subject to constitutional harmless error analysis because of nexus with the right to testify). The court in Solomon relied particularly on the discussion in Arizona v. Fulminante, 499 U.S. 279, 308, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991), wherein the United States Supreme Court reiterated that the harmless error doctrine is essential in focusing on the underlying fairness of the trial and the factual question of guilt or innocence. The Solomon court concluded, “We agree with the great weight of authority that has concluded that denial of the right to testify is a ‘trial error’ [as opposed to a structural defect in the trial mechanism] and is thus subject to a harmless-error analysis.” Solomon, 560 N.W.2d at 655.
I likewise agree. And it is not apparent why no inquiry should be made into the issue of prejudice where the defendant is prevented from testifying by his counsel, instead of by the court.
But a question does arise: What degree of prejudice need *542be shown, and by whom? In a constitutional error case, the State must prove the error is harmless beyond a reasonable doubt. In an ineffective assistance case, the defendant must demonstrate prejudice. The demonstration of prejudice in the ineffective assistance case is the logical equivalent of the harmless error analysis. Where the error of counsel deprives the defendant of a fundamental constitutional right, should the inquiry into prejudice become closer to the requirement of “harmless beyond a reasonable doubt”?
Other courts have examined this issue and concluded that the Strickland analysis requiring the defendant to demonstrate prejudice should be retained. See, e.g., Arguelles, 921 P.2d at 441-42 (collecting cases). The D.C. Circuit has announced a hybrid test for this precise circumstance, which seems to me an appropriate starting point. In determining whether counsel’s deficient performance prejudiced the defendant, the court both recognizes the special significance of the defendant’s precluded right to testify, and at the same time inquires whether it is reasonably probable that defendant’s testimony would have changed the outcome. Tavares, 100 F.3d at 998.
In my view, however, the special significance of the defendant’s right to testify should lessen the required showing of prejudice. That is, in the unusual case where the defendant can prove he was in fact prevented from testifying by his attorney, there need be only a reasonable possibility—as opposed to a reasonable probability—that the defendant’s testimony would have changed the outcome. In close cases then, the right to testify should prevail.
But we cannot tell here what might have been the effect of Robinson’s testimony, since defendant made no showing regarding his precluded testimony. We therefore cannot resolve the issue on this record.
Robinson points out, however, that the proceedings below gave him no clear opportunity to make such an offer of proof. Although Robinson’s theories included ineffective assistance of counsel, the trial court denied his motion without determining whether his attorney was ineffective, *543finding that Robinson had an obligation to bring his desires to the attention of the court—essentially relying on Robinson’s original waiver. The prejudice question was therefore not squarely addressed. Because the trial court is in the best position to evaluate the offer of proof, I would remand for determination of whether Robinson’s proposed testimony presents a reasonable possibility of a different outcome.
I thus concur with the majority in its rejection of a per se rule, but would reach a different disposition, and so dissent to the extent the majority declines to remand.
After modification, further reconsideration denied March 9, 1998.
Review granted at 136 Wn.2d 1013 (1998).
Strickland, v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Although not identified as such in the opinion, the Haga court relied on the dissent in Martinez, which, along with the majority opinion, has been vacated. Haga, 87 Wn. App. at 940 (citing United States v. Martinez, 883 F.2d 750, 770 (9th Cir. 1989) (Reinhardt, J., dissenting), vacated by 928 F.2d 1470 (9th Cir. 1991)).