concurring and dissenting.
I concur in the majority opinion except as to part III.A.2. Because I believe that requiring the trial court to engage in an on-the-record colloquy with every defendant is unnecessary and may inappropriately influence a defendant’s decision to testify, I respectfully dissent from part III.A.2.
The right to testify, as the majority correctly points out, is statutorily and constitutionally guaranteed, and is essential to due process of law. However, it is merely one of the many rights granted by statute or by state and federal constitutional provisions. The trial courts in this jurisdiction, of course, are not required to conduct colloquies to ensure that every defendant is made aware of, or has waived, each and every right granted by constitution or state statute. A trial court can justifiably presume, based on a defendant’s conduct or silence, that a defendant is aware of and has waived certain rights. This is because the duty to inform a defendant of the existence of certain constitutional rights rationally and justifiably rests with defendant’s counsel. See State v. Silva, 78 Hawai'i 115, 890 P.2d 702 (App.1995) (“One of defense counsel’s responsibilities is to advise the defendant on the question of whether or not he or she should testify.”) (citation omitted); State v. Savage, 120 N.J. 594, 577 A.2d 455 (1990) (placing the responsibility for informing a defendant of the right to testify on defendant’s counsel). Indeed, trial courts are not required, for example, to conduct a colloquy to ensure that every defendant represented by counsel has waived his or her right to self-representation, see United States v. Martinez, 883 F.2d 750, 757-58 (9th Cir.1989), vacated on other grounds, 928 F.2d 1470 (9th Cir.), cert. denied, 501 U.S. 1249, 111 S.Ct. 2886, 115 L.Ed.2d 1052 (1991) (citing state and federal cases reaching this conclusion), or that every defendant who declines to cross-examine a particular witness has made an explicit on-the-record waiver of that right. Id. at 758-59. Accordingly, unless there are compelling reasons for conducting an on-the-record colloquy to ensure that a defendant is made aware of, or has waived, a particular right, I see little justification for requiring such a colloquy.
*241In my view, we must balance the benefits of an on-the-record colloquy with the risks and administrative burden placed on the trial court, keeping in mind the importance of the right at issue, and the necessity of establishing a procedural safeguard to protect the particular right.
An on-the-record colloquy would ensure that a defendant who chooses not to testify has knowingly, intelligently, and voluntarily waived the right to testify. Therefore, even where a defendant’s own attorney attempts to prevent a defendant from exercising his or her constitutional right to testify, the defendant would have an opportunity to notify the court of his or her desire to testify. The majority’s procedural safeguard, then, appears to be a reasonable requirement to ensure that a defendant has waived his or her constitutional right to testify. Practically speaking, however, it will be a rare case where a defendant is actually unaware of his or her right to testify. Even more remote is the possibility, such as the case at hand, that an attorney will actually deny a defendant his or her right to testify. Therefore, I question the necessity of requiring the trial court to conduct a colloquy to ensure that a defendant has knowingly and intelligently waived the right to testify. Indeed,
[cjustom and common sense ... have led to a different conclusion in cases analogous to the instant one. The right not to testify is among the fundamental and personal rights recognized by the Constitution, see Griffin v. California, 380 U.S. 609, 614-15, 85 S.Ct. 1229, 1232-33, 14 L.Ed.2d 106 (1965). If anything, one would expect the right not to testify to be more zealously guarded than the right to testify. An uninformed defendant probably expects to testify and may be unaware how strongly the Constitution protects his [or her] right not to testify. Yet the trial court has no duty to make a sua sponte inquiry to advise the defendant of his [or her] right not to testify and to ensure that its waiver was knowing and intelligent. Rather, the defendant by taking the stand waives this significant right even though the record gives no explicit assurance that this waiver was knowing and intelligent. [United States v.] Wagner, 834 F.2d [1474,] 1483 [ (9th Cir.1987) ].
The court has no obligation to inquire into whether the defendant knowingly and intelligently waived the right not to testify inherent in the privilege against compelled self-incrimination. Id. It is primarily the responsibility of counsel, not the judge, to advise a defendant on whether or not to testify, and the tactical advantages and disadvantages of each choice. For the court to discuss the choice with the defendant would intrude into the attorney-client relationship protected by the sixth amendment. Id., citing United States v. Goodwin, 770 F.2d 631, 637 (7th Cir.1985).
Every case of which we are aware has reached this same conclusion. See, e.g., Knowles v. State, 364 So.2d 712, 713-14 (Ala.Crim.App.1978); People v. Vargas, 195 Cal.App.3d 1385, 241 Cal.Rptr. 360 (1987); People v. Longwith, 125 Cal.App.3d 400, 178 Cal.Rptr. 136 (1981); People v. Thomas, 43 Cal.App.3d 862, 866-68, 118 Cal.Rptr. 226 (1974); People v. Mozee, 723 P.2d 117 (Colo.1986); State v. LoSacco, 12 Conn.App. 481, 531 A.2d 184, 187 (1987); State v. McKenzie, 17 Md.App. 563, 303 A.2d 406 (Md.Spec.App.1973); Martin v. State, 73 Md.App. 597, 535 A.2d 951, 952-53 (Md.App.1988) (collecting cases); People v. Johnson, 168 Mich.App. 581, 425 N.W.2d 187, 189 (1988); State v. Bogus, 223 N.J.Super. 409, 538 A.2d 1278, 1287-88 (1988) (collecting cases); State v. Poindexter, 69 N.C.App. 691, 318 S.E.2d 329, cert. denied, 312 N.C. 497, 322 S.E.2d 563 (1984).
Martinez, 883 F.2d at 756-57.
Given the fact that courts do not even require an on-the-record colloquy to ensure that a defendant is aware of, and has waived, the right not to testify, I fail to understand the necessity of requiring an on-the-record colloquy regarding the right to testify.
The primary impetus for the majority’s colloquy requirement is not to protect a de*242fendant’s right to testify. Rather, the majority seeks to preclude post-conviction disputes on this issue, and to lessen the difficulty, on appeal, of determining the legitimacy of a claim by a defendant asserting a violation of the right to testify. While I understand the majority’s attempt to facilitate more efficient appellate review, the majority downplays the risks and burdens associated with the colloquy requirement regarding the right to testify. A majority of jurisdictions, on various grounds, have recognized the risks and burdens of a colloquy requirement and hold that a court has no duty sua sponte to advise a defendant of the right to testify, or to conduct an on-the-record colloquy to ensure that the defendant has knowingly and intelligently waived this right.
At least seven reasons have been given for this conclusion: First, the right to testify is seen as the kind of right that must be asserted in order to be recognized. Second, it is important that the decision to testify be made at the time of trial and that the failure to testify not be raised as an afterthought after conviction. Third, by advising the defendant of his [or her] right to testify, the court could influence the defendant to waive his [or her] right not to testify, “thus threatening the exercise of this other, converse, constitutionally explicit and more fragile right.” Fourth, a court so advising a defendant might improperly intrude on the attorney-client relation, protected by the Sixth Amendment. Fifth, there is danger that the judge’s admonition would introduce error into the trial. Sixth, it is hard to say when the judge should appropriately advise the defendant — the judge does not know the defendant is not testifying until the defense rests, not an opportune moment to conduct a colloquy. Seventh, the judge should not interfere with defense strategy.
Martinez, 883 F.2d at 760 (citations omitted) (emphasis in original).
The majority, citing Kupau (right to included offense instruction), Ibuos (right to trial by jury), Vares (right to counsel), and Conner (right to have guilt proved beyond a reasonable doubt (i.e., entry of guilty plea)), notes that this jurisdiction already requires trial courts to engage in on-the-record colloquies with criminal defendants when the waiver of other fundamental rights are at issue. Majority at 235-36, 900 P.2d at 1302-03. This fact, however, is of little consequence in light of the vast majority of other rights for which this court , does not require an express on-the-record waiver. In addition, I believe that, unlike the other rights for which we require a colloquy, a colloquy requirement concerning the right to testify invites more problems than it solves.
First, the right to testify is a highly tactical decision which a defendant generally reserves while awaiting developments in the trial. On the other hand, the decisions to waive a trial by jury or to proceed without counsel are made before trial. These decisions, then, are more accurately characterized as broad matters of trial strategy rather than tactical decisions made by the defendant, with the advice of counsel, as the trial unfolds.1 Commonwealth v. Hennessey, 23 Mass.App.Ct. 384, 502 N.E.2d 943, review denied, 399 Mass. 1102, 504 N.E.2d 1066 (1987). The fact that deciding whether to exercise the right to testify is a highly tactical decision, however, takes on an even greater significance because
[u]nlike the right to a jury trial and the right to plead not guilty, the right to testify has a mirror image which is constitutionally protected, viz., the right not to testify, to remain silent. When a trial judge intercedes with a colloquy regarding jury trial or the right to plead not guilty, the judge’s intentions are clear. He is informing the defendant of constitutionally provided protections. The right to testify *243is more complex. There is a risk that in explicating the right to testify the judge will cast in unflattering light the right not to testify. To claim the privilege not to testify, the defendant merely remains silent. He [or she] does not have to claim anything. Requiring a trial judge to ask the defendant whether he [or she] wishes to testify would carry with it a risk of introducing error if the exchange between judge and defendant appeared to press the merits of taking the stand....
Id. at 389-90, 502 N.E.2d at 947 (citations omitted) (emphasis in original). As the majority recognizes, “‘by advising the defendant of his [or her] right to testify, the court could influence the defendant to waive his [or her] right not to testify, thus threatening the exercise of this other, converse, constitutionally explicit and more fragile right.’ ” Majority at 235, 900 P.2d at 1302 (quoting Martinez, 883 F.2d at 760). Nevertheless, the majority is convinced .that this risk is minimal and that “with appropriate instructions, the defendant can be advised of both the right to testify and the right not to testify, without influencing the decision one way or the other.” Majority at 235, 900 P.2d at 1302 (quoting Boyd v. United States, 586 A.2d 670, 679 n. 19 (D.C.App.1991)). I disagree. The facts in Silva, supra, provide a classic example of a trial court influencing a defendant’s decision to testify. In Silva, the trial court, in a colloquy with defendant, dissuaded him from testifying in his own defense:
THE COURT: ....
I believe [Defense Counsel] rested. Now, Mr. Solomon [sic], [Defense Counsel] has seen me in chambers and said that you wanted to testify. Is that correct?
MR. SILVA: Yes, I do, sir.
THE COURT: All right. Let me tell you this: Maybe we should listen to our lawyers, you know what I mean?
The motion that I heard, all the Government has to show me is some evidence of assault and I have to deny the motion.
Now, the Government, on the case on the merits, has the burden of proving each and every element beyond a reasonable doubt which is a much heavier burden. Do you understand that? And I’ve worked with [Defense Counsel] quite a long time and she’s one of the very, very competent Defense Attorney [sic].
Are you telling me you want to go counter to her advice to you?
MR. SILVA: I decided I’ll go with her advice, Your Honor.
Silva, 78 Hawai'i at 121-22, 890 P.2d at 708-09. The Intermediate Court of Appeals (ICA) held that the trial court violated defendant’s constitutional and statutory right to testify in his own defense. Id. at 123, 890 P.2d at 710. The ICA further held that once a defendant notifies the court of his or her intent to testify, the court should not comment upon the advisability of such a decision. Id. at 124, 890 P.2d at 711. In my view, this precise rule should apply to a defendant who remains silent because “a trial judge may safely assume that a defendant, who is ably represented and who does not testify is merely exercising his [or her] Fifth Amendment privilege against self-incrimination and is abiding by his [or her] counsel’s trial strategy; otherwise, the judge would have to conduct a law seminar prior to every criminal trial.” People v. Mosqueda, 5 Cal.App.3d 540, 545, 85 Cal.Rptr. 346, 349 (1970). Therefore, I agree with the ICA’s observation in Silva that “[t]he decision to testify is ultimately committed to a defendant’s own discretion, preferably in consultation with defense counsel, but neither the existence nor the nature of such consultation should ordinarily be the subject of any judicial scrutiny.” 78 Hawai'i at 124, 890 P.2d at 711 (emphasis added).
A second problem I foresee with a colloquy regarding the right to testify is the awkward timing involved. The majority requires the trial judge to, whenever possible, conduct the colloquy at the precise moment “immediately prior to the close of defendant’s case.” Majority at 237, 900 P.2d at 1304. The majority concedes the difficulty presented by this requirement:
Of course, the trial court judge cannot independently foresee when the defense is *244on the verge of resting and conduct the colloquy at the precise moment. Consequently, the trial courts will require the cooperation of defense counsel to enable them to conduct the colloquy immediately prior to the close of the defendant’s case.
Furthermore, although the ultimate colloquy should be conducted after all evidence other than the defendant’s testimony has been received, it would behoove the trial court, prior to the start of trial, to (1) inform the defendant of his or her personal right to testify or not to testify and (2) alert the defendant that, if he or she has not testified by the end of the trial, the court will briefly question him or her to ensure that the decision not to testify is the defendant’s own decision. Such an early warning would reduce the possibility that the trial court’s colloquy could have any inadvertent effect on either the defendant’s right not to testify or the attorney-client relationship.
Majority at 237 n. 9, 900 P.2d at 1304 n. 9.
The majority’s solution, however, gives rise to potential problems and ignores the practical realities of courtroom procedure. Relying on the cooperation of defense counsel alone gives rise to the probability of myriad problems that wouldn’t otherwise exist. In addition, I question the majority’s recommendation that the trial court, prior to the start of trial, alert the defendant that if he or she has not testified by the end of the trial, the trial court will conduct a colloquy to ensure that the decision not to testify is defendant’s own decision. If the defendant chooses to exercise his or her right to testify, however, the majority makes no recommendation that the trial court conduct such a colloquy. In my view, this approach is inconsistent and may have the unintended effect of portraying the right not to testify in an unfavorable light. This is because the defendant is informed that the trial court will intervene and conduct a colloquy if defendant exercises the right not to testify, but no colloquy will take place should the defendant chose to exercise his or her right to testify. Because the trial court will inform the defendant, prior to trial, of his or her personal right to testify or not to testify, I believe that the trial court may reasonably construe defendant’s silence as an affirmative exercise of the right not to testify, and a colloquy is likewise unnecessary.
The risks and burdens of requiring an on-the-record colloquy regarding the right to testify are significant and substantially outweigh the benefits of a colloquy requirement. A “[defendant [is] entitled to make the final personal determination of whether or not to [testify] in consultation with counsel, without the intervention of the court, whatsoever.” Silva, 78 Hawai'i at 125, 890 P.2d at 712 (emphasis added). In addition, the majority asserts no compelling reasons demonstrating the necessity of such a requirement. Accordingly, I would join the majority of jurisdictions and decline to require the trial court to conduct an on-the-record colloquy regarding the right to testify.
: Although the right to an included offenses instruction is also a tactical decision made by defendant after all the evidence has been presented, the ultimate decision on the jury instructions rests with the trial judge. The trial court’s decision is based, in part, on the defendant's understanding of the waiver of the right to an included offense instruction. As such, the colloquy is an essential factor in the trial judge's decision on whether to submit to the jury an included offenses instruction.