¶ 44. (dissenting). The defendant pled not guilty to *404three counts and asked for a jury trial. During trial, defense counsel conceded the defendant's guilt to one of the counts — disorderly conduct while armed with a dangerous weapon — and failed to object to jury instructions that omitted an element of this crime.1 The mere statement of these simple, undisputed facts illustrates the flaws in the majority decision.
¶ 45. The Constitution provides that the decision to plead guilty rests with the defendant alone. The due process clause of the Fourteenth Amendment protects against defense counsel's usurping that decision.2 No trial can thus be considered constitutionally fair when an attorney overrides the accused's wishes to hold the government to its burden of proof beyond a reasonable doubt on each criminal charge.3
¶ 46. I would therefore affirm the decision of the court of appeals. I would conclude, as did the court of appeals, that a clear rule should be established that defense counsel may never concede guilt to any charged offense without the defendant's consent.41 would there*405fore remand the cause to the circuit court, as did the court of appeals, for an evidentiary hearing to determine whether the defendant knowingly, voluntarily, and intelligently consented to defense counsel's concession of guilt.5
¶ 47. I would further hold, as did the court of appeals, that defense counsel's failure to object to the circuit court's omission in instructing the jury on the nexus element was prejudicial error. No trial can be considered constitutionally fair when a defendant who pleads not guilty is convicted without a finding of guilt beyond a reasonable doubt on each element of the crime charged. The burden of proving guilt beyond a reasonable doubt rests with the State and the determination of whether this burden has been met rests with the jury. A conviction following the complete failure to instruct a jury on an essential element of a crime violates the accused's constitutional rights to due process and a jury trial, and cannot stand.
*406H
¶ 48. This court must adopt a clear rule that defense counsel may not concede a defendant's guilt to a charged offense without the defendant's consent. As I will show, (A) the decision to plead guilty is a fundamental choice that belongs to the defendant alone, and because defense counsel's concession of guilt at trial operates as the functional equivalent of a guilty plea, the defendant's consent to the concession is necessary; (B) the majority's attempts to distinguish the concession of guilt in the present case from concessions of guilt that serve as the functional equivalent of a guilty plea do not withstand scrutiny; and (C) properly understood, this case is not about ineffective assistance of counsel, but rather, the due process violation that occurs when defense counsel usurps the right of a defendant to plead guilty personally.
A
¶ 49. The decision to plead guilty is one of the fundamental choices that remain squarely in the hands of the defendant at all times.6 In Jones v. Barnes, 463 U.S. 745, 751 (1983), the United States Supreme Court recognized that an accused has the ultimate authority to make certain fundamental decisions regarding his case, including the decision to plead guilty. Moreover, in *407State v. Albright, 96 Wis. 2d 122, 129-30, 291 N.W.2d 487 (1980), this court explained, "[C]ertain constitutional rights of a criminal defendant are so fundamental that they are deemed to be personal rights which must be waived personally by the defendant. In this category of personal rights is found the decision whether to plead guilty."7
¶ 50. An accused's right to make these fundamental decisions personally is not abolished, diminished, or otherwise affected by an accused's constitutional right to counsel. In Faretta v. California, 422 U.S. 806, 834 (1975), the Supreme Court explained that the right to counsel is predicated on respect for the individual's liberty to make his own choices as to his defense, because ultimately, it is the individual himself who must bear the consequences of those choices. "[T]he function of counsel under the Sixth Amendment is to protect the dignity and autonomy of a person on trial by assisting him in making choices that are his to make, not to make choices for him .. . ."8
¶ 51. The decision to concede guilt in statements that amount to the functional equivalent of a guilty plea, therefore, must be made by the accused personally.9 Regardless of the strategic wisdom of conceding *408guilt, a defense attorney may not concede his client's guilt without the client's consent; an accused's constitutional right to plead guilty personally cannot be stripped away in the name of trial strategy. Under the Constitution, an accused's right to plead guilty personally trumps a defense attorney's ability to determine trial strategy.
¶ 52. The majority does not deny that the decision to plead guilty is a fundamental choice that remains squarely in the hands of the defendant, not of his counsel. The majority even acknowledges that defense counsel in this case conceded guilt to the charge of *409disorderly conduct while armed.10 The majority, however, rejects the defendant's claim that the concession of guilt amounted to the functional equivalent of a guilty plea. According to the majority, the concession of guilt here was merely a "reasonable tactical approach"11 and therefore the defendant's consent was unnecessary.12
¶ 53. Defense counsel need not utter the words "the accused pleads guilty" and then cease to participate further in the trial in order for his words or actions to serve as the "functional equivalent of a guilty plea." Rather, words or actions by defense counsel amount to the functional equivalent of a guilty plea when they effectively undermine those rights that are asserted when a defendant pleads not guilty and elects to be tried before a jury.13
¶ 54. When the defendant here pled not guilty, he exercised his right to make a statement in open court *410that he intended to hold the State to the strict standard of proof beyond a reasonable doubt as to each of the offenses charged.14 Moreover, when the defendant pled not guilty and also asserted his right to a jury trial, he exercised his right to have a unanimous jury verdict of guilt beyond a reasonable doubt on each of the offenses charged.15
¶ 55. Despite the defendant's not guilty plea in the present case, defense counsel said to the jury, "[T]here is no doubt, there is no question" that at the moment the defendant was shot his conduct provided sufficient grounds to arrest him for disorderly conduct while armed. Defense counsel continued: "Obviously, running around the neighborhood with two knives is disorderly conduct and it is disorderly conduct while armed." Moreover, defense counsel concluded his closing argument at trial, in which his client was charged with three crimes, by stating, "I'm asking you folks to acquit [the defendant] on the first and the third charges. Thank you." The charge on which defense counsel did not ask for an acquittal was disorderly conduct while armed.
¶ 56. Defense counsel, by stating that the defendant was, in fact, running around the neighborhood with knives and that his actions "obviously" constituted disorderly conduct while armed, essentially told the jurors that he was agreeing with the State that the defendant was guilty of the crime charged. Moreover, defense counsel drove the point home when he re*411quested that the jury acquit the defendant on two charges, but not on the charge of disorderly conduct.
¶ 57. The only logical conclusion that can be drawn from this concession is that it served as the functional equivalent of a guilty plea. Defense counsel's concession of guilt toppled the defendant's plea of not guilty.16 Defense counsel folded up the tents and waved the white flag to the disorderly conduct while armed charge, signaling to the jury that the State had met its burden of proof and the defendant was in fact guilty. Defense counsel's complete concession of the defendant's guilt thereby compromised the adversarial process and nullified the defendant's right to a jury trial,17 eradicating the State's burden to prove guilt beyond a reasonable doubt on the disorderly conduct while armed charge.18 The effect of the concession was substantially the same as the effect of a guilty plea would have been. Indeed, at the State's closing rebuttal argument, after the concession was made, the State *412made no mention of the disorderly conduct charge and focused only on the other two charges.
B
¶ 58. The majority concludes, in a single paragraph, that the concession in this case did not amount to the functional equivalent of a guilty plea because it did not serve to waive any of the rights that are sacrificed by a typical guilty plea. According to the majority, the concession of guilt had no effect on the defendant's right to a jury trial, his right to cross-examine the State's witnesses, his right to testify in his own defense, and his right to have a unanimous jury verdict of guilt beyond a reasonable doubt.19
¶ 59. The majority is simply wrong in its conclusion. A defendant cannot be considered to have exercised these rights when defense counsel concedes the defendant's guilt.
¶ 60. The defendant's not guilty plea entitled the defendant to have the issue of his guilt presented to the jury as an adversarial issue in which the State bears the burden of proving guilt beyond a reasonable doubt.20 Without an adversarial process in which guilt is actually contested, the role of the jury is perfunctory; deliberations become a charade. There is simply no way to know in this case whether the jury's determination of guilt beyond a reasonable doubt resulted from the *413weight of the evidence presented or from the concession itself.21 It seems safe to conclude, however, that regardless of the evidence, no rational jury would reach a not guilty verdict when both parties agree that the defendant is guilty. If a defendant cannot convince his own attorney to argue his innocence at trial, there is virtually no likelihood that a jury would find him not guilty. The concession of guilt rendered the unanimous verdict of guilt to the charge of disorderly conduct while armed a foregone conclusion.
¶ 61. The majority further concludes that the concession in this case does not amount to the functional equivalent of a guilty plea because (1) it was made with regard to only one of three charges the defendant faced, not all of the charges; (2) the concession was made during closing argument after adversarial testing of the evidence, not during opening argument; (3) the defendant did not contemporaneously object to the concession; and (4) the defendant's testimony did not conflict with the concession.22 In at least one of these four ways, asserts the majority, this case is different from other cases in which a defense counsel's concession of guilt was held to amount to the functional equivalent of a guilty plea.23
*414¶ 62. These reasons, however, do not withstand scrutiny. First, the fact that defense counsel conceded guilt to only one of many charges is irrelevant. The Constitution does not grant an accused the right to plead guilty only to all or none of the charges he or she faces. Rather, the right to plead is personal to the accused as to each charge. Defense counsel, in this case, admitted guilt on one criminal charge. The State was thus not put to its burden of proof with respect to that charge as the defendant's plea of not guilty required.
¶ 63. Second, the fact that defense counsel conceded guilt during closing argument and not opening argument is also irrelevant. The Constitution does not restrict when an accused may plead guilty. An accused does not lose his "ultimate authority" over the decision to plead guilty simply because a jury has been impaneled.
¶ 64. The majority might be suggesting that a concession during closing argument is different than a concession during opening argument because the defendant has exercised some of his trial rights, such as the right to cross-examine witnesses, call witnesses on his own behalf, and if he so chooses, testify in his own defense. The ability to exercise some rights, however, does not make up for the fact that other rights were violated. The fact remains that the effect of the conces*415sion at either time is to take away the defendant's right to a jury trial, whereby his guilt is decided through an adversarial process in which the State bears the burden of proof beyond a reasonable doubt, and his right to a unanimous jury verdict.
¶ 65. In making the distinction between a concession of guilt to all charges as opposed to only one of many charges and between a concession of guilt during opening argument as opposed to closing argument, the majority mistakes reasons why it may be strategically wise to concede guilt for reasons why a concession of guilt should not be considered the functional equivalent of a guilty plea. It might make very good tactical sense to concede guilt to the least serious of many charges in order to maintain credibility with the jury and enhance the prospects of acquittal on the more serious charges, and it might make even better sense to wait to concede guilt until all of the evidence has been presented and challenged before deciding whether it appears overwhelming. That a concession would be strategically wise, however, does not make it a "tactical" decision that may be made without the defendant's consent.24
¶ 66. It may be strategically wise to plead guilty following a preliminary hearing at which the State produces an airtight confession and corroborating physical evidence, but it still remains the decision of the accused alone whether to go to trial. The right to make that decision does not disappear just because the State *416successfully introduces that confession and physical evidence during trial and defense counsel realizes that there is no legitimate defense to be made.
¶ 67. The other two distinctions drawn by the majority are also irrelevant. The fact that the defendant did not object to the concession and that the defendant's testimony comported with the concession address only whether the defendant consented to defense counsel's concession, not whether the concession amounts to the functional equivalent of a guilty plea. Moreover, an accused's consent cannot be inferred from his failure to object to counsel's concession of guilt or from his own testimony.
¶ 68. The defendant's failure to stand up at trial and object to defense counsel's closing argument is insufficient to constitute consent to defense counsel's conduct. Courts must "indulge every reasonable presumption against waiver of fundamental constitutional rights" and should not "presume acquiescence in the loss" of those rights.25 The Constitution requires that there must be an affirmative showing, or an "allegation and evidence which shows," that a guilty plea was knowingly, voluntarily, and intelligently made.26 Thus, a silent record cannot form the basis upon which we determine whether a guilty plea is knowingly, voluntarily, and intelligently made.27
*417¶ 69. Similarly, the defendant's testimony stating facts that support a finding of disorderly conduct while armed does not amount to consent to defense counsel's concession of guilt. The defendant told his story after pleading not guilty. He never changed his plea, and it is absurd to conclude that factual admissions made under cross-examination by the prosecutor amounted to a change of plea. The Constitution does not permit a directed verdict of guilty, even when the prosecution's evidence is uncontradicted or the evidence is overwhelming, since to do so improperly invades the province of the jury.28 Therefore, the Constitution cannot consider a defendant to have waived his right to a jury trial and his right to a unanimous verdict of guilt beyond a reasonable doubt simply by testifying to facts that support a finding of guilt.
C
¶ 70. Because the majority erroneously characterizes the concession of guilt as a mere tactical decision left to defense counsel, not the defendant, it subjects defense counsel's actions to the test for ineffective assistance of counsel announced in Strickland v. Wash*418ington, 466 U.S. 668 (1984). The majority concludes that the tactical decision was reasonable in light of the defendant's own testimony and therefore did not constitute deficient performance. Moreover, writes the majority, even if the attorney's performance was deficient, the defendant suffered no prejudice since there was "no way in the world that the jury was going to acquit" on the disorderly conduct while armed count.29
¶ 71. Questions of deficient performance, however, are irrelevant to our inquiry. "Strickland does not provide the appropriate framework for analyzing this case. . . . [T]his case raises a much broader concern that goes to the very core of what the Sixth Amendment means and asks us to address important questions involving due process and the right to a fair trial."30
¶ 72. A defense attorney's concession of guilt to one of many charges may be the smartest, best, and most effective trial strategy possible, and the defense attorney's performance, in that sense, may not be deficient.31 Yet the question presented in this case is one *419of due process and fair trial: Who has the right to decide whether to concede guilt and effectively remove the State's burden to convince a jury to unanimously find guilt beyond a reasonable doubt, the accused or the accused's lawyer?
¶ 73. When the question is presented in this way, stripped down to its essentials and basics, the answer is well-settled constitutional law. As we explained previously and as the majority opinion concedes, the due process clause guarantees that only an accused, not defense counsel, has the right to enter a guilty plea.32 Only an accused has the right to decide whether to make concessions in open court that amount to the functional equivalent of a guilty plea. And if the defense attorney does so without the accused's consent, the conviction must be vacated for a violation of due process.
¶ 74. The Constitution does not forbid a defense attorney from strategically conceding guilt to a charge at trial. The Constitution does require, however, that a defense attorney obtain the consent of his client before conceding guilt in terms that amount to the functional equivalent of a guilty plea.
*420II
¶ 75. The defendant in the present case was not once, but twice denied his right to a constitutionally fair trial on the charge of disorderly conduct while armed. As the majority explains, when an accused is alleged to have possessed a dangerous weapon in the commission of a crime for purposes of the "while armed" penalty enhancer, the circuit court is required to give a Peete nexus instruction, instructing the jury that it must find that the dangerous weapon facilitated the underling crime.33 In the present case, however, after defense counsel conceded the defendant's guilt to disorderly conduct while armed, the circuit court failed to give the Peete nexus instruction for the State's charge of disorderly conduct while armed and defense counsel did not object.
¶ 76. It is clear that an accused's constitutional rights are violated if a jury has not been instructed on every element of an offense.34 The Due Process Clause demands that no criminal defendant be convicted at trial except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he or she is charged.35 The burden of proving each and every element rests on the State; the determination as to whether this burden has been met as to each and *421every element rests with the jury. Therefore, a "proper jury instruction is a crucial component of the fact-finding process."36
¶ 77. It is also clear under Wisconsin law that harmless error analysis does not apply to an erroneous jury instruction that omits an element of the offense. This court has consistently held that a circuit court's failure to instruct a jury on an essential element of a crime is fundamentally unfair and cannot be harmless error. See State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762, State v. Howard, 211 Wis. 2d 269, 564 N.W.2d 753 (1997), and State v. Avila, 192 Wis. 2d 870, 532 N.W.2d 423 (1995).37
¶ 78. The majority acknowledges that the jury instruction in the present case was error.38 The majority overrules clear Wisconsin precedent, however, and concludes that the failure to instruct the jury on an essential element of the crime is subject to harmless *422error review.39 According to the majority, this court's decisions in Howard and Avila "cannot survive our decision last term in Harvey."40
¶ 79. In Harvey, as the majority points out, this court applied harmless error review to a particular type of instructional error in which the jury instruction improperly operated as a mandatory conclusive presumption on an element of a penalty enhancer. Yet the majority concludes that Harvey nonetheless governs this case as well since there is "no meaningful way" to distinguish an instruction that erroneously includes a mandatory conclusive presumption from an instruction that erroneously omits an element of the offense.41
¶ 80. I disagree that there is no meaningful distinction between the instructional error at issue in Harvey and the instructional error at issue in the present case. Harvey, its companion case, State v. Tomlinson, 2002 WI 91, 254 Wis. 2d 502, 648 N.W.2d 367, and the federal case on which it relied, Neder v. United States, 527 U.S. 1 (1999), all involved fact patterns in which the trial court found for itself an element of the crime, erroneously taking the element away from the jury. In the present case, by contrast, the jury received *423no instruction whatsoever on an essential element of the crime, and the circuit court made no finding on the element either.
¶ 81. In Neder, the accused was charged with violating federal criminal statutes penalizing fraud. Among the elements of the crimes with which he was charged was that any false statements made had to be material to the perpetration of fraud. Instead of instructing the jury on materiality, the trial court told the jurors that the question of materiality was not a question for the jury to decide.42 The trial court explained to the jury that "it 'need not consider' the materiality of any false statements 'even though that language is used in the indictment.' "43 The Neder jury was aware that materiality was necessary for a finding of guilt. The jury simply was led to believe that the trial court would make the finding at a subsequent stage of the trial.44
¶ 82. In both Harvey and Tomlinson, the circuit court improperly told the jurors that one of the elements of the crime had already been decided for them and then offered that element to the jury for inclusion in its deliberations as a mandatory conclusive presumption. As in Neder, the jurors knew about the element *424and knew that the trial court had, in effect, made a finding that the evidence satisfied the element.
¶ 83. By contrast, in the case at hand, no instruction on the nexus element was given at all, and neither the court nor the jury was ever expressly asked to decide the nexus element. The jurors remained unaware throughout their deliberations that for the defendant to be convicted of disorderly conduct while armed, the knives must have facilitated his disorderly conduct. The defendant in the present case was convicted of the "dangerous weapon" penalty enhancer without any finding by either a court or a jury that each of the elements of that crime was proven beyond a reasonable doubt.
¶ 84. Wisconsin harmless error law clearly distinguishes between an erroneous instruction, as in Neder, Harvey, and Tomlinson, and an instruction that omits an essential element, as in Avila, Howard, and Perkins. Harmless error analysis applies to an erroneous instruction but does not apply to the complete absence of an essential instruction. The Howard court explained:
[I]f the circuit court fails to instruct a jury about an essential element of the crime and the jury must find that element beyond a reasonable doubt, there is an automatic reversal of the verdict. If, however, there is some instruction on that element, albeit erroneous, and the jury is told that the element must be proven beyond a reasonable doubt, then the analysis is one of harmless error.45
¶ 85. In short, Harvey does not demand that we overturn well-established Wisconsin law. Moreover, the majority does not offer any other reason for overturn*425ing Avila, Howard, and Perkins. This court does not overturn precedent unless there is strong justification, namely when precedent has become detrimental to coherence and consistency in the law.46 Avila, Howard, and Perkins have served Wisconsin well and remain coherent and consistent with the Constitution. As Justice Wilcox explained in Perkins, if a court were to uphold a conviction when the jury was not instructed on an essential element of the charge, it would "in effect" be "upholding a directed verdict in favor of the State" and "to do so would violate [the accused's] constitutional rights to due process and a jury trial. .. a result [that] is strictly forbidden."47
¶ 86. For the reasons set forth, I dissent.
¶ 87. I am authorized to state that Justice ANN WALSH BRADLEY joins this dissent.
The circuit court found that defense counsel's remarks during closing argument amounted to a concession of the defendant's guilt. The court of appeals concluded that this finding was not clearly erroneous.
Brookhart v. Janis, 384 U.S. 1, 9 (1966) (Harlan, J., concurring).
See Haynes v. Cain, 298 F.3d 375, 387 (5th Cir. 2002) (Parker, J., dissenting).
See State v. Gordon, 2002 WI App 53, ¶ 27, 250 Wis. 2d 702, 641 N.W.2d 183 ("[A] defense attorney may not admit his client's guilt, which is contrary to his client's plea of not guilty, unless the defendant unequivocally understands and consents to the admission."); see also Heidi H. Woessner, Criminal Law — The Crucible of Adversarial Testing: Ineffective Assistance of Counsel and Unauthorized Concessions of Client's *405Guilt, 24 W. New Eng. L. Rev. 315, 340 (2002) (a clear rule establishing that it is never reasonable for defense counsel to concede guilt or the absence of any reasonable doubt as to any charged offense without the defendant's consent is supported by existing notions of the collaborative nature of the attorney-client relationship and constitutional protections surrounding the entry of guilty pleas; a clear rule would reduce litigation).
See State v. Machner, 92 Wis. 2d 797, 804, 285 N.W.2d 905 (Ct. App. 1979).
If the defendant did not consent to defense counsel's concession of guilt, the court of appeals further directed the circuit court to give the State the opportunity to conduct a new trial solely on the charge of the proscribed "while armed" conduct or allow for resentencing without the enhancer. Gordon, 250 Wis. 2d 702, ¶ 39.
Jones v. Barnes, 463 U.S. 745, 751 (1983); Wainwright v. Sykes, 433 U.S. 72, 93 n.1 (1977) (Burger, C.J., concurring); Faretta v. California, 422 U.S. 806, 834 (1975). See also 3 Wayne R. LaFave et al., Criminal Procedure § 11.6(a) at 598 (2d ed. 1999) ("The Supreme Court has stated, in dictum or holding, that it is for the defendant to decide whether to take each of the following steps: plead guilty or take action tantamount to entering a guilty plea ....").
See also State v. Burns, 226 Wis. 2d 762, 771, 594 N.W.2d 799 (1999); SCR 20:1.2(a) ("In a criminal case or any proceeding that could result in deprivation of liberty, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.").
Jones v. Barnes, 463 U.S. at 759 (1983) (Brennan, J., dissenting).
See, e.g., Francis v. Spraggins, 720 F.2d 1190 (11th Cir. 1983) (counsel may not concede guilt without client's consent to maintain credibility for the sentencing phase); Cox v. Hutto, 589 *408F.2d 394, 395, 396 (8th Cir. 1979) (a defense attorney's stipulating to an accused's prior convictions at a jury trial on a habitual offender charge amounts to a waiver of the accused's right to have the State prove the prior offenses and the accused's right to rebut the State's evidence and cannot be accepted without consent of the defendant); People v. Hattery, 488 N.E.2d 513 (Ill. 1986) (counsel may not concede client's guilt without client's consent in the hope of obtaining a more lenient sentence where a plea of not guilty has been entered); State v. Carter, 14 P.3d 1138 (Kan. 2000) (counsel's concession of defendant's guilt to a robbery charge is equivalent to entering a guilty plea and cannot be made over defendant's objection); State v. Moore, 458 N.W.2d 90 (Minn. 1990) (new trial ordered when the defense attorney's concession amounted to an admission that the accused "was guilty of heat-of-passion manslaughter" without the consent or acquiescence of the accused); State v. Wiplinger, 343 N.W.2d 858, 860, 861 (Minn. 1984) (a defense attorney who indirectly admits an accused's guilt by asking questions of witnesses that imply that one of two crimes charged was, in fact, committed by the accused, admits guilt rising to the level of a guilty plea and requires a client's consent); Jones v. State, 877 P.2d 1052, 1057 (Nev. 1994) (new trial was ordered when counsel conceded guilt during the guilt/innocence phase of the trial without client's consent).
Majority op., ¶ 26.
Id.
The Wisconsin Rules of Professional Conduct make it clear that even those strategic or tactical decisions that are within the province of an attorney are to be made after consultation with the client. See SCR 20:1.2 (a lawyer shall abide by a client's decisions concerning the objectives of representation and shall consult with the client as to the means by which they are pursued); SCR 20:1.4(b) (a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation).
See, e.g., Brookhart, 384 U.S. at 7 (1966) (defense counsel's decision to agree to a prima facie trial, in which the State's burden of proof is lowered and the defense is not allowed to present evidence or cross-examine witnesses, held to be the functional equivalent of a guilty plea); Wiley v. Sowders, 647 F.2d 642, 649-50 (6th Cir. 1981) (counsel's admission of guilt in closing argument constituted a surrender of the sword and cannot be overlooked as trial strategy).
Nixon v. Singletary, 758 So. 2d 618, 623 (Fla. 2000) (citing Byrd v. United States, 342 F.2d 939, 941 (D.C. Cir. 1965)).
State v. Lomagro, 113 Wis. 2d 582, 588-89, 335 N.W.2d 583 (1983).
See Wiley, 647 F.2d at 650 ("Unquestionably, the constitutional right of a criminal defendant to plead 'not guilty,' or perhaps more accurately not to plead guilty, entails the obligation of his attorney to structure the trial of the case around his client's plea.").
Wiley, 647 F.2d at 650.
See United States v. Cronic, 466 U.S. 648, 656 (1984) ("The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing... [I]f the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated."); see also Nixon, 758 So. 2d at 623 (an attorney's statement amounted to the functional equivalent of a guilty plea because it removed the strict burden on the State to prove the accused's guilt beyond a reasonable doubt).
Majority op., ¶ 24.
See Nixon, 758 So. 2d at 625 ("In every criminal case, a defense attorney can, at the very least, hold the State to its burden of proof by clearly articulating to the jury or fact-finder that the State must establish each element of the crime charged and that a conviction can only be based upon proof beyond a reasonable doubt.").
See Connecticut v. Johnson, 460 U.S. 73, 85 (1983)("An erroneous presumption on a disputed element of the crime renders irrelevant the evidence on the issue because the jury may have relied upon the presumption rather than upon evidence.").
Majority op., ¶ 27.
Id. But see United States v. Simone, 931 F.2d 1186, 1197 (7th Cir. 1991), in which the court stated:
We do not approve of a defense counsel's deliberate, explicit admission that a jury should find his client guilty of a charge in the absence of any suggestion that the defendant concurred in the *414decision to proceed in such a manner. However, in the case before us, [the defendant's] attorney intentionally stipulated facts and conceded those charges for which there was unrefutable evidence and no mandatory sentences, but forcefully argued [the defendant's] innocence on the charges with heavier penalties, as part of a trial strategy. It was a reasonable plan that was evident from the beginning of the trial. At no time did the defendant object to it; in fact, we believe he chose or at least condoned the tactics. Our position was reinforced by [the defendant's] post-trial letter to the sentencing judge which provided ample evidence of his approval of the strategy.
See Cronic, 466 U.S. at 656 n.19 ("If there is no bona fide defense to the charge, counsel may disserve the interests of his client by attempting a useless charade. At the same time, even when no theory of defense is available, if the decision to stand trial has been made, counsel must hold the prosecution to its heavy burden of proof beyond a reasonable doubt.") (citations omitted).
Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (citations omitted).
State v. Bangert, 131 Wis. 2d 246, 257, 389 N.W.2d 12 (1986) (citing Boykin v. Alabama, 395 U.S. 238, 242 (1969)).
See, e.g., Boykin, 395 U.S. at 242-43 (extending Carnley v. Cochran, 369 U.S. 506, 516 (1962), to hold that a silent record is insufficient to determine whether a guilty plea is knowingly and voluntarily made); State v. Armstrong, 223 Wis. 2d 331, 348, 588 N.W.2d 606 (1999) ("This court has always set high standards of *417proof for the waiver of constitutional rights,... "); State v. Albright, 96 Wis. 2d 122, 291 N.W.2d 487 (1980) (Abrahamson, J., dissenting) (waiver should not be presumed from silence as it is unrealistic to expect a defendant to stand and openly oppose counsel over decision on whether to testify).
See Edwards v. United States, 286 F.2d 681, 683 (5th Cir. 1960) ("No matter how conclusive the evidence, a court may not direct a verdict of guilt."); see also State v. Harvey, 2002 WI 93, ¶ 20, 254 Wis. 2d 442, 647 N.W.2d 189 ("[A] judge 'may not direct a verdict for the State, no matter how overwhelming the evidence.'") (quoting Sullivan v. Louisiana, 508 U.S. 275, 277 (1993)).
Majority op., ¶ 30. Of course, "no way the jury would acquit" is not the standard to be applied. As the majority opinion explains, the test is whether the "result is reliable," majority op., ¶ 22 (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)), that is, whether the attorney's deficient performance "undermine[s] confidence in the outcome." Majority op., ¶ 23 (quoting Williams v. Taylor, 529 U.S. 362, 390-91). The test is not simply whether an appellate court weighing the evidence in hindsight determines that the jury would have convicted the defendant regardless of the error.
Haynes, 298 F.3d at 385 (Parker, J., dissenting).
See, e.g., Haynes, 298 F.3d at 387 (Parker, J., dissenting) ("Trial counsel's decision to concede Haynes' guilt on the second degree murder charge was probably a wise move. However, this point is absolutely irrelevant to the issue before us. The *419Constitution mandates that the decision to concede guilt on a lesser charge must be made by the accused, not his attorney, regardless of how difficult it may be for the attorney to mount a defense on all charges.").
Nixon, 758 So. 2d at 625 ("Although the attorney can make some tactical decisions, the ultimate choice as to which direction to sail is left up to the defendant. The question is not whether the route taken was correct; rather, the question is whether [the defendant] approved of the course.").
Majority op., ¶ 31.
State v. Tomlinson, 2002 WI 91, ¶¶ 56-57, 254 Wis. 2d 502, 648 N.W.2d 367; Harvey, 254 Wis. 2d 442, ¶¶ 18-23, 29; State v. Perkins, 2001 WI 46, ¶ 40, 243 Wis. 2d 141, 626 N.W.2d 762; State v. Howard, 211 Wis. 2d 269, ¶ 47, 564 N.W.2d 753 (1997); State v. Avila, 192 Wis. 2d 870, ¶ 9, 532 N.W.2d 423 (1995).
Howard, 211 Wis. 2d 269, ¶ 45 (citing In re Winship, 397 U.S. 358, 364 (1970)).
Id., ¶ 46 (citing State v. Schultz, 102 Wis. 2d 423, 426, 307 N.W.2d 151 (1981)).
Perkins, 243 Wis. 2d 141, ¶ 53 (Wilcox, J., concurring, joined by Crooks, J.) ("[W]here jury instructions are devoid of explanation regarding an element of an alleged offense, the instructions effectively preclude the jury from rendering a verdict on that element. In such circumstances, there can be no jury verdict on that particular element and, therefore, harmless error analysis — which analyzes cases in terms of the jury verdict — is inapplicable."); Howard, 211 Wis. 2d 269, ¶ 51 (follows Avila in holding that when a court fails to instruct a jury on an essential element of a crime there is an automatic reversal of the verdict); Avila, 192 Wis. 2d at 893A (concludes that "[w]hen a jury does not make a finding of guilty beyond a reasonable doubt on an element of the crime, a court cannot conclude that a deficient jury instruction with regard to that element is harmless error").
Majority op., ¶ 32.
Id., ¶ 34. When discussing the harmless error standard, the majority simply repeats verbatim its discussion in Harvey without taking into account the nuances of that standard that have been expressed in recent opinions of this court. See, e.g., State v. Vanmanivong, 2003 WI 41, ¶¶ 41-49, 261 Wis. 2d 202, 661 N.W.2d 76; State v. Carlson, 2003 WI 40, ¶¶ 85-87, 261 Wis. 2d 97, 661 N.W.2d 51 (Sykes, J., dissenting); id., ¶ 51 n.1 (Ahrahamson, C.J., concurring).
Majority op., ¶ 34 (referring to Harvey, 254 Wis. 2d 442). The majority also overturns, without admitting as much, Perkins, 243 Wis. 2d 141.
Majority op., ¶ 40.
Neder v. United States, 527 U.S. 1, 6 (1999).
Id.
The trial court did ultimately make that finding. Neder, 527 U.S. at 6 ("The court.. . subsequently found, outside the presence of the jury, that the evidence established the materiality of all the false statements at issue.").
The conclusions of law made in Neder are, at times, stated more broadly than its facts. For example, despite addressing an instruction that took an element away from the jury, the Neder decision states that the "conclusion that the omission of an element is subject to harmless-error analysis is consistent with" prior case law. Neder, 527 U.S. at 10.
Howard, 211 Wis. 2d 269, ¶ 51 (citing Avila, 192 Wis. 2d at 893A).
State v. Outagamie County Bd. of Adjustment, 2001 WI 78, ¶ 29, 244 Wis. 2d 613, 628 N.W.2d 376 (internal citations omitted).
Perkins, 243 Wis. 2d 141, ¶ 58.