NOONAN, Circuit Judge:
Robert (“Bobby”) Martinez was convicted on four counts of importing heroin into the United States in violation of 21 U.S.C. § 960(a)(1) and one count of possession with intent to distribute heroin in violation of 21 U.S.C. §§ 846 and 841(b)(l)(B)(i). He appeals from denial of his motion for a new trial. The appeal involves a question of constitutional law new in this circuit: what constitutes an effective waiver by a criminal defendant of his fundamental personal right to testify in his own behalf.
FACTS
The evidence presented by the government established that in September and October 1986 United States Customs in Hawaii intercepted four packages identically wrapped and addressed in the same handwriting, with the same misspelled word, mailed from Changmai, Thailand. Each package contained a carved wooden elephant. Each elephant was packed with heroin. The four packages were addressed to four different people at three different addresses. The persons at the different address did not know each other. Their only tie was a common acquaintance with Bobby Martinez. None of the addressees had ordered or expected to receive wooden elephants.
[752]*752A controlled delivery was made of the elephant addressed to Martinez’s aunt Flora and her husband. After the delivery the house was kept under surveillance for nine days. At the end of this period a car was observed leaving the house. A federal agent went to the front door and saw that the elephant was missing. The agents followed the ear. A wild chase through Honolulu ensued. The car was finally stopped and its driver, Martinez, was apprehended with the elephant in his possession.
At the trial Martinez was represented by Michael A. Weight, a native of Hawaii educated at the University of Rochester and at Vanderbilt University Law School, from which he graduated in 1967. From 1969 to 1974 he was Deputy Prosecuting Attorney in Honolulu and in 1976 he was Special Assistant Attorney General. He is a member of the state bar and of the bars of the district court in Hawaii, the Ninth Circuit, and the Supreme Court of the United States. Weight was privately retained by Martinez. The focus of this appeal is Weight’s refusal to call Martinez as a witness in his own behalf.
After being retained, Martinez told Weight that he wished to testify in his own defense. Weight told him that under the circumstances he was not prepared to say whether that was advisable or not. In Weight’s view it depended on whom the government called as prosecution witnesses.
The trial began with uncertainty continuing as to who would testify for the government. Until the government’s case was in, Weight told Martinez a decision could not be made as to whether he should testify or not. At the end of the government’s case Martinez told Weight “that he felt he should testify.” Weight told Martinez that he was not going to call him. As Weight recalled the conversation, “He expressed to me the desire to testify; and I said no way, that I thought it was suicidal for him to testify and it would be an error in judgment; and that was it. I just made the decision he was not going to testify, I refused to call him, and that was the way it went down.”
Weight did not come right out and say, “If you take the witness stand I am going to withdraw from the case.” However, in Weight’s view, “implicit in what I told him was that implied threat, I suppose.”
The decision not to call Martinez was not based on the belief on Weight’s part that Martinez would have perjured himself on the stand. Martinez wanted to offer exculpatory testimony that would have contradicted other testimony but in Weight’s view did not constitute perjury. Weight did not discuss with Martinez the option of Martinez approaching the trial judge and saying that he was having a problem taking the stand because Weight was holding him back. In Weight’s opinion, Weight had made “the strategic and tactical decision that he should not testify, notwithstanding his request to do so.”
At no point did Martinez say he “demanded to testify” or “insisted on testifying.” According to Weight, “he never said he did not care what I felt about it.” As Weight summarized the matter after considerable interrogation as to what had gone on: “If we keep it pure and simple the way it went down, the way it went down was Bobby says: T want to testify’; I said ‘No, you’re not going to testify’; period, end of conversation.”
PROCEEDINGS
After Martinez was convicted and sentenced he obtained new counsel and moved for a new trial on the ground that “he was deprived of his fundamental constitutional right to testify at the initial trial herein due to the unilateral decision of his counsel not to call him as a witness.” The district judge denied the motion. Martinez appeals.
ANALYSIS
1.
The leading case on the issue presented here is Wright v. Estelle, 572 F.2d 1071 (5th Cir.) (en banc), cert. denied 439 U.S. 1004, 99 S.Ct. 617, 58 L.Ed.2d 680 (1978). A majority of the court in that case took the position that counsel’s overriding of his [753]*753client’s desire to testify could be harmless error and in fact in the case before it was harmless error. The district court in this case ruled that even if there was a right to testify that could not be waived the error was harmless. The evidence pointing to conviction, the court ruled, was overwhelming and the exculpatory evidence to which the defendant would have testified would have had little or no value: “[F]or one thing if he denies it [the evidence against him] it would be self-serving.”
Because there has been such a change in fairly recent times in willingness to accept the testimony of an accused, history gives us less light than it sometimes affords. To invoke Socrates, as Judge Godbold did dissenting in Estelle, 572 F.2d at 1078, is to go back to a real person whose words, as we have them, were penned by his pious pupil, Plato. We have no first hand knowledge of what he said. To approach a little closer to our own system, English law did not give evidentiary weight to a defendant’s testimony. In the famous 1535 trial of Thomas More, he, as a lawyer, was able to argue evidentiary points with the witnesses against him and to insist on the custom of being allowed to address the court after the jury had brought in a verdict, but before sentence had been pronounced. The Trial of Sir Thomas More, 1 Howell’s State Trials 392 (1816). If the defendant was not a lawyer, this procedure did not offer him much of an opportunity to argue and address the court and certainly no opportunity to offer his own testimony. See, e.g., The Trial of Sir Walter Raleigh, 2 Howell’s State Trials 1-60 (1816). Raleigh did wrangle, unsuccessfully, on points of law with his judges in 1603. E.g., id. at 4, 19 and 24. But the defendant was denied the opportunity to confront his principal accuser, id., and was subjected to vicious vituperation by the attorney general, Edward Coke. Id. at 7-8, 25-27. A reading of the transcript conveys the impression that the trial was a show trial in the sense of Soviet trials for treason in the 1930s and that the defendant was permitted to participate, not in recognition of his dignity, but to be made an exhibition.
If we approach a little closer to our system and look at the practice of a founding father who was also a leading lawyer, John Adams considered it a natural right for a person to have the advice of counsel in a capital case. 3 Legal Papers of John Adams 7, (L. Wroth & E. Zobel ed. 1965). But Adams in no uncertain terms set out to his clients what the clients could expect of him, if we may trust his recollection of what happened in his defense of Captain Preston in the Boston Massacre Case. Adams responded to James Forrest, otherwise known as the Irish Infant, an agent of Captain Preston, as follows:
I had no hesitation in answering that Council ought to be the very last thing that an accused Person should want in a free Country. That the Bar ought in my opinion to be independent and impartial at all Times And in every Circumstance. And that Persons whose Lives were at Stake ought to have the Council they preferred: But he must be sensible this would be as important a Cause as ever was tryed in any Court or Country of the World: and that every Lawyer must hold himself responsible not only to his Country, but to the highest and most infallible of all Trybunals for the Part he should Act. He must therefore expect from me no Art or Address, No Sophistry or Prevarication in such a Cause; nor any thing more than Fact, Evidence and Law would justify.
Id. at 6.
Judge Godbold in his dissent in Estelle asserted that we know, at least, that the founding fathers were in favor of free choice. Estelle, 572 F.2d at 1078, quoting Faretta v. California, 422 U.S. 806, 833-34, 95 S.Ct. 2525, 2540, 45 L.Ed.2d 562 (1975). In an abstract sense of course this observation is true, but if we look at Adams speaking to the Irish Infant, it is apparent that Adams thought a great many choices would be made by counsel. On probably the single most critical issue in the case, whether the soldiers who had done the shooting would be tried along with Captain Preston, their commanding officer, Adams made the decision for a joint trial, even though that choice offered [754]*754the probability of severe prejudice to the soldiers. It was necessary for three of them, Private Matthew Kilroy and his fellows, to object to the court. 3 Legal Papers of John Adams at 17. Adams’ conduct with Kilroy would not meet modern standards of professional behavior but does afford light on what was considered appropriate by a good lawyer at the time of the Revolution.
The Constitution of Massachusetts, adopted in 1780, reflects Adams’ approach: “[E]very subject shall have a right to ... be fully heard in his defence by himself, or his counsel, at his election.” Id. Part 1, Art. XII. The choice offered is between being one’s own lawyer or having counsel.
One of the first acts of Congress, The Judiciary Act of 1789, provided: “[I]n all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of such counsel or attorneys at law as by the rules of the said court respectively shall be permitted to manage and conduct causes therein.” 1 Stat. 73, 92 § 35 (1789). Again, as in the Constitution of Massachusetts, a choice is set up between managing one’s own case personally or doing so by the assistance of counsel who are permitted “to manage and conduct causes.”
The Sixth Amendment was proposed in the same Congress that adopted the Judiciary Act. On June 8, 1789 Madison proposed in the House without explanation what became the amendment, 1 Annals of Congress 451 (J. Gales ed. 1789). The “assistance of counsel” clause was returned by the Senate, unaltered, on September 21, 1789. Id. at 948. On September 24, 1789 the Judiciary Act became law. 1 Stat. 73, 93 (1789). The scant discussion that attended the amendment in Congress and in the states ratifying the amendment offers no light on its meaning in regard to the present question. See W. Beaney, The Right to Counsel in American Courts 27-28 (1972). It is clear, however, that the First Congress believed that there was a right to manage one’s own defense personally although not necessarily a right to do that and also have the management of the case conducted by counsel. The structure of the amendment calls for a choice.
2.
The right to testify in one’s own behalf is a right that has been found by the Supreme Court to derive from several sources in the Constitution. It is one of the rights “essential to due process of law in a fair adversary process.” Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 2709, 97 L.Ed.2d 37 (1987), quoting Faretta, 422 U.S. at 819 n. 15, 95 S.Ct. at 2533 n. 15. The right “is also found in the Compulsory Process Clause of the Sixth Amendment.” Id. 107 S.Ct. at 2710. It is also “a necessary corollary to the Fifth Amendment’s guarantee against compelled testimony.” Id. It has been authoritatively determined that it is unconstitutional for the state to restrict this right by a rule precluding post-hypnosis testimony by a defendant. Id. at 2714-15.
At the same time it has been recognized that the constitutional right to testify is not so absolute that it may not be subjected by the state to reasonable restrictions. For example, the right to testify carries with it the obligation to submit to cross-examination. United States v. Hearst, 563 F.2d 1331, 1340 (9th Cir.1977). The defendant is faced with the decision of whether he should preserve his constitutional right to complete silence or put on what may be his only defense and thereby open himself to cross-examination. United States v. Wagner, 834 F.2d 1474, 1483 (9th Cir.1987).
The rule is that “restrictions of a defendant’s right to testify may not be arbitrarily disproportionate to the purposes they are designed to serve.” Rock, 107 S.Ct. at 2711. A proportionate reason is the obligation of a lawyer not to present a perjurious witness to the court. See Nix v. Whiteside, 475 U.S. 157, 168-70, 106 S.Ct. 988, 994-95, 89 L.Ed.2d 123 (1986); United States v. Curtis, 742 F.2d 1070, 1076 (7th Cir.1984). It is in terms of the guiding principle of the proportion of the restriction to the purpose served that we evaluate Martinez’s claim to a new trial because his testimony was prevented, not by the state [755]*755but by his own lawyer. See Rock, 107 S.Ct. at 2711.
The decision whether or not to exercise the right to testify is to be made by the accused after consultation with counsel. American Bar Association, Report on Standards Relating to the Prosecution Function and the Defense Function §§ 5.2, 237-38 (1971); American Bar Association, Model Rules of Professional Conduct Rule 1.2(a) (1983). The earlier rules of the American Bar Association, Model Code of Professional Conduct, EC 7-7 were not explicit but did provide that the authority to make decisions affecting the merits of the case or substantially prejudicing the rights of a client were “exclusively that of the client.” These provisions were in force in Hawaii, see Code of Professional Responsibility of the State of Hawaii (1981).
As to the case where a lawyer has made a strategic decision not to put his client on the stand we have guidance from Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 L.Ed.2d 638 (1987). Counsel for a defendant found guilty of murder made the strategic decision not to put the defendant on the stand in the sentencing hearings. The lawyer’s meetings with his client and the testimony of a psychologist had convinced the lawyer “that it would be unwise to put petitioner himself on the witness stand.” Id. 107 S.Ct. at 3124. This strategic decision was found to be a reasonable one and did not amount to ineffective representation by the lawyer. The Court said, “Quite obviously, as the District Court concluded, an experienced trial lawyer could properly have decided not to put either petitioner or the psychologist who had thus evaluated him in a position where he would be subject to cross-examination that might be literally fatal.” Id.
A sentencing hearing is not identical to a trial, but “a capital sentencing proceeding ‘is sufficiently like a trial in its adversarial format and in the existence of standards for decision’ that counsel’s role in the two proceedings is comparable.” Id. at 3123, quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984). If it was not ineffective assistance of counsel for a lawyer to make a strategic decision not to put the defendant on the stand in a capital sentencing proceeding, it was not ineffective assistance not to put the defendant on the stand in an ordinary criminal trial.
In our case Michael Weight made a strategic decision not to put Bobby Martinez on the stand. He knew that Martinez had been convicted less than three years before of using a communications facility to further the distribution of cocaine in violation of 21 U.S.C. § 842(b). Indeed he had represented Martinez in that case. He also knew that Martinez’s aunt would contradict a substantial part of his testimony. He also was informed that if Martinez testified the government would call as a rebuttal witness one Paul Cleveland who would testify that he was incarcerated in a federal prison and there came to know Martinez and that they both then met a Thai national who informed them that when he returned to Thailand he would be available to help them in heroin trafficking and that after his release from prison he, Cleveland, had made arrangements with the Thai national to engage in this traffic with himself and Martinez. Weight formed the opinion that Cleveland’s testimony would be “very damaging to Martinez.” He avoided Cleveland’s testimony by not putting Martinez on the stand. If Martinez’s claim now was that he had been rendered ineffective assistance of counsel, Weight’s conduct would be found to have been reasonable. See Burger v. Kemp, 107 S.Ct. at 3122-23.
The district judge explicitly found that Weight was one of the most competent lawyers practicing before it. Weight’s strategic decision was not of such a character as to make him less than Martinez’s lawyer when he made it.
3.
The possibility remains, however, that the right to testify may have been violated although the right to counsel was not. The argument is as follows: The right to defend one’s self is fundamental. It is a right older and more basic than the right to counsel. It is a personal right absolutely [756]*756necessary to assure the treatment of the defendant as a human person when threatened with the loss of life or liberty or property by the state. The Sixth Amendment is the embodiment in our Constitution of this natural right. See Faretta, 422 U.S. at 812-21, 95 S.Ct. at 2529-34. The Sixth Amendment “grants to the accused personally the right to make his defense.” Id. at 819, 95 S.Ct. at 2533.
The Sixth Amendment guarantees the assistance of counsel. It is predicated on the assumption that the client is the master of his or her case. Accordingly in Faretta it was held that the state could not foist counsel upon the accused. The amendment’s structure “necessarily implied” the right to self-representation. Id. at 819, 95 S.Ct. at 2533. The right to defend oneself was “given directly to the accused; for it is he who suffers the consequences if the defense fails.” Id. at 820, 95 S.Ct. at 2533. The right to testify is a constitutional right of fundamental dimensions.
The fundamental and personal character of the right has been eloquently set out by Judge Godbold in Wright v. Estelle, 572 F.2d 1070, 1077-80 (5th Cir.1978) (en banc) (Godbold, J., dissenting). Its fundamental and personal character has also been recognized in dicta in opinions of the Supreme Court. Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983); Wainwright v. Sykes, 433 U.S. 72, 93, n. 1, 97 S.Ct. 2497, 2509-10, n. 1, 53 L.Ed.2d 594 (1977) (concurring opinion). In this case we treat the right as fundamental and personal.
As the right is fundamental and personal it can only be relinquished by the person to whom it belongs, the defendant in a criminal trial. The general rule is clear that the relinquishment of such a right must be intentional and to be intentional must be known to the one who gives it up. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).
This general rule has been applied where a defendant has been induced to waive jury trial and plead guilty. Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942) (waiver of jury trial); Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1968) (guilty plea). This general rule has been applied where a defendant has also been alleged to waive counsel. In such a case it has been held that the record must show that the accused was offered counsel but intelligently and understanding^ rejected the offer. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1968); Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962). A waiver of counsel cannot be presumed from a silent record. Boykin, 395 U.S. at 242, 89 S.Ct. at 1711-12, quoting Carnley, 369 U.S. at 516, 82 S.Ct. at 890.
Here it is argued that Bobby Martinez did not intentionally relinquish his right to testify. In the face of Weight’s peremptory refusal to put him on the stand he continued to ask to testify, so he relinquished nothing. Moreover, as he never phrased his request in terms of the Constitution it is not evident that he knew he had the right to testify and he could not have intentionally abandoned a right he did not know he had. On both grounds, therefore, it is urged that there was here no waiver of a known constitutional right. Its waiver cannot be presumed from the silent record.
Custom and common sense, however, 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 right not to testify. Yet the trial court has no duty to make a sua sponte inquiry to advise the defendant of his 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 [757]*757assurance that this waiver was knowing and intelligent. Wagner, 834 F.2d at 1483.
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.Cr.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).
The most frequently given reason is that the decision is a matter of trial strategy between the defendant and counsel; the court should not interfere. See, e.g., McKenzie, 303 A.2d at 418; Johnson, 425 N.W.2d at 189; Bogus, 538 A.2d at 1286.
There is also a danger that the judge will appear to encourage the defendant to invoke or to waive this right. See Commonwealth v. Waters, 399 Mass. 708, 506 N.E.2d 859, 865 (1987); Bogus, 538 A.2d at 1286. This danger is of great significance because the right not to testify counterpoises the right to testify, and the exercise of one is the waiver of the other. Waters, 506 N.E.2d at 865.
Where a defendant foregoes his personal and fundamental right to represent himself and proceeds with counsel, it is not the norm for the record to show that by proceeding with counsel the defendant has knowingly and understanding^ waived his right to represent himself. On the contrary, the presumption is made that when an accused proceeds with counsel he has elected to have counsel represent him. All courts reaching the question have uniformly and explicitly held that absent a request from the defendant a court has no duty sua sponte to advise him of his right to self-representation, nor any duty to ensure on the record that waiver of this right was knowing and intelligent. While no federal cases post-dating Faretta squarely address the issue, several pre-Faretta cases reach this conclusion. E.g., United States v. Jones, 514 F.2d 1331 (D.C.Cir.1975); United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15-16 (2d Cir.1965); see also United States ex rel. Soto v. United States, 504 F.2d 1339 (3d Cir.1974) (rejecting constitutional right to proceed pro se, but holding that even if right is constitutional, no need for court sua sponte to advise defendant of right).
State courts have uniformly come to the same conclusion. See, e.g., State v. Rickman, 148 Ariz. 499, 715 P.2d 752, 756 (1986); People v. Salazar, 74 Cal.App.3d 875, 887-88, 141 Cal.Rptr. 753 (1977), citing with approval, People v. Enciso, 25 Cal.App.3d 49, 55-57, 101 Cal.Rptr. 590 (1972); State v. Carter, 200 Conn. 607, 513 A.2d 47, 50-51 (1986); Torres-Arboledo v. State, 524 So.2d 403 at 411 (Fla.1988); Russell v. State, 270 Ind. 55, 383 N.E.2d 309, 312-13 (1978); State v. Stinson, 424 A.2d 327 (Me.1981); State v. McCafferty, 587 S.W.2d 611, 612 (Mo.App.1979); People v. McIntyre, 36 N.Y.2d 10, 18, 364 N.Y.S.2d 837, 844, 324 N.E.2d 322 (1974), applied in People v. Burton, 106 A.D.2d 652, 482 N.Y.S.2d 909, 910-11 (App.Div.1984); Felts v. State, 588 P.2d 572, 575-76 (Okla.Cr.1978); State v. Garcia, 92 Wash.2d 647, 600 P.2d 1010, 1014-15 (1979); State v. Sheppard, [758]*758310 S.E.2d 173, 187 (W.Va.1983); Williams v. State, 655 P.2d 273, 274-76 (Wyo.1982).
Among the reasons given are that (1) the exercise of the right of self-representation is actually to the detriment of the defendant as well as to the orderly administration of justice (as could also be said of the right to testify); (2) the right to self-representation is unlike the right to counsel, which itself protects other fundamental rights; (3) a defendant with counsel has not been denied a fair trial or his due process rights; (4) such advice from the court might suggest that the average defendant can represent himself or does not need the assistance of an attorney (as also could be said of the right to testify); and (5) unlike the right to counsel, this right is not a critical aspect of the right to a fair trial but rather is linked to the defendant’s right to free choice (as also could be said of the right to testify).
The presumption of waiver inferred from conduct and a silent record has been decisively recognized in the special case of a pro se defendant: “Once a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant’s acquiescence, at least until the defendant expressly and unambiguously renews his request that standby counsel be silenced.” McKaskle v. Wiggins, 465 U.S. 168, 183, 104 S.Ct. 944, 953, 79 L.Ed.2d 122 (1984). The same rule has applicability where a defendant is not pro se but is represented throughout the proceedings by counsel. Any other rule would require the invalidation of an enormous number of federal and state criminal proceedings on the ground that the record did not show that the defendant had knowingly and intelligently waived his right to represent himself.
By extension, the same rule applies where a defendant fails to take the witness stand because of his counsel’s advice. Adoption of the position taken by the dissent could require invalidation of a large number of federal and state trials on the ground that the silent record did not show that the defendant had been advised of his constitutional right to testify and had voluntarily relinquished this right. According to the recent plurality in Teague v. Lane, — U.S. —, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), a rule that imposes new obligations on the government may be applied retroactively to cases on collateral review if the new rule involves “new procedures without which the likelihood of an accurate conviction is seriously diminished.” Id. at 1076-77. It is not clear whether or not the dissent believes that the right to testify is “so central to an accurate determination of innocence or guilt,” id. at 1077, that retroactive application is justified. Even if, as the dissent ambiguously suggests, its proposed rule were prospective, it would have a serious impact on state prosecutions which could not be expected to adopt instantly the new rule of law. Common sense cries out against this conclusion.
The dissent’s difficulty is in understanding how one can waive a personal and fundamental right by conduct. But the dissent accepts without batting an eye the common practice of inferring the waiver of the right to represent oneself from the conduct of the defendant appearing with counsel. E.g. United States v. Weisz, 718 F.2d 413, 425 (D.C.Cir.1983), cert. denied, 465 U.S. 1027, 1034, 104 S.Ct. 1285, 1305, 79 L.Ed.2d 668, 704 (1984); cf. Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir.1982) (en banc). In that practice there is no provision for ascertaining that the defendant knew he had the constitutional right to go it alone in court.
Another analogy exists in the defendant’s right to confront the witnesses against him. This right is rooted in human nature, in ancient and long-standing legal practice, Coy v. Iowa, — U.S. —, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). It is expressly recognized by the Sixth Amendment. It has been characterized as a personal right. Faretta v. California, 422 U.S. 806, 819-20, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975); see also Milton v. Morris, 767 F.2d 1443, 1446 (9th Cir.1985). Indeed it has been paired with the right to testify in these terms: the defendant’s “right to testify and to confront personally the witnesses against him.” Taylor v. [759]*759United States, 414 U.S. 17, 19, 94 S.Ct. 194-95, 38 L.Ed.2d 174 (1973). A major component of this right is the right of the defendant “to cross-examine the witnesses against him.” Pointer v. Texas, 380 U.S. 400, 407, 85 S.Ct. 1065-69, 13 L.Ed.2d 923 (1965); see also Coy v. Iowa, — U.S. —, 108 S.Ct. 2798, 2802-03, 101 L.Ed.2d 857 (1988).
Day after day in the courts of the United States defense counsel make the decision not to cross-examine without first informing their clients that they have a fundamental constitutional right to insist upon cross-examination and without obtaining from their clients a formal written waiver of this constitutional right. How does a poor, uneducated, non-television-watching defendant know that he has a fundamental constitutional right that he is waiving when his lawyer declines to cross-examine? We assume, not unreasonably in our culture, that this right is so generally known that it is not necessary to inform the defendant of its existence. We also assume that by accepting counsel and not objecting in court to counsel’s action that the defendant waives this right when counsel waives it. It is crystal-clear that a defendant may waive the right by his conduct. United States v. Goldstein, 532 F.2d 1305, 1314-15 (9th Cir.), cert. denied, 429 U.S. 960, 97 S.Ct. 384, 50 L.Ed.2d 327 (1976). There is no requirement that the defendant be expressly advised of the right by the trial court. Taylor, 414 U.S. at 19, 94 S.Ct. at 195. There is no requirement that the defendant exerts a formal waiver of this right. Conduct alone — without proof of the defendant’s knowledge or formal intent to waive — suffices. Id.
So, too, this circuit has already established that a criminal defendant’s right to testify may be waived by conduct. United States v. Ives, 504 F.2d 935, 941 (9th Cir.1974) (per Wallace, J.), vacated, 421 U.S. 944, 95 S.Ct. 1671, 44 L.Ed.2d 97 (1975), reinstated in part, vacated and remanded in part, 547 F.2d 1100 (9th Cir.1976), cert. denied, 429 U.S. 1103, 97 S.Ct. 1130, 51 L.Ed.2d 554 (1977). No inquiry was then held to be necessary to demonstrate that the defendant knew he was waiving a constitutional right, and the waiver was inferred to take place from conduct not addressed to the right. The court observed that it might infringe upon the privilege against self-incrimination for the prosecutor or court to inquire if the defendant wanted to testify. Id. at 940.
The rationale of Ives was recently adopted by the First Circuit, declining to invalidate a state criminal trial because the judge did not ascertain whether or not the defendant knew he had a right to testify and did not ascertain whether or not the defendant wished to exercise that right. Siciliano v. Vose, 834 F.2d 29, 30-31 (1st Cir.1987).
The argument based on danger to the privilege against self-incrimination does have a ready answer: the court could inquire of the defendant out of the presence of the jury. The defendant would not be prejudiced with the court, which is well aware of the defendant’s right not to testify; the jury would never hear the inquiry; there would be no interference with the privilege against self-incrimination. The obviousness of this answer suggests the Ives and Siciliano courts were more concerned with denying the need for formal inquiry of the defendant than they were in providing a rationale for the practice of not inquiring. In each case the court just did not believe that the defendant was unaware that he had a right to testify.
The defendant in Siciliano asserted in his habeas corpus affidavit that his attorney refused to allow him to testify in his own behalf. The court held that this assertion did not require the district court to hold an evidentiary hearing on his claimed denial of his constitutional right to testify. Id. at 31. Although nothing in the record before the court indicated that Siciliano knew that he had the constitutional right to override his attorney, the court treated his acquiescence at the trial in his attorney’s advice as in effect a waiver of the constitutional right. Conduct, without proof of knowledge of the constitutional right, was enough.
[760]*760All circuit courts reaching the question have held that courts have no affirmative duty sua sponte to address a silent defendant and inquire whether he knowingly and intelligently waives the right to testify. Ortega v. O’Leary, 843 F.2d 258, 261 (7th Cir.), cert. denied, — U.S. — , 109 S.Ct. 110, 102 L.Ed.2d 85 (1988); Siciliano, 834 F.2d at 30; United States v. Bernloehr, 833 F.2d 749, 751-52 (8th Cir.1987); United States v. Janoe, 720 F.2d 1156 (10th Cir.1983), cert. denied, 465 U.S. 1036, 104 S.Ct. 1310, 79 L.Ed.2d 707 (1984); see also Wright v. Estelle, 572 F.2d at 1073 (Thornberry, J., concurring) (5 of 14 judges).
By far the majority of states that have considered the question also have held that courts have no duty sua sponte to advise the defendant of his right to testify and establish on the record that this right was waived knowingly and intelligently. Waiver of this right is presumed from the defendant’s failure to testify or notify the court of his desire to do so. E.g., State v. Allie, 147 Ariz. 320, 710 P.2d 430, 437-38 (1985); People v. Longwith, 125 Cal.App.3d 400, 178 Cal.Rptr. 136 (1981); Torres-Arboledo v. State, 524 So.2d 403, 409-11 (Fla.1988); Aragon v. State, 114 Idaho 758, 760 P.2d 1174, 1179 (1988); State v. McKinney, 221 Kan. 691, 561 P.2d 432 (1977); Commonwealth v. Waters, 399 Mass. 708, 506 N.E.2d 859, 864-65 (1987); Commonwealth v. Guess, 23 Mass.App. 208, 500 N.E.2d 825, 827-28 (1986); People v. Simmons, 140 Mich.App. 681, 364 N.W.2d 783 (1985); In re Mecier, 143 Vt. 23, 460 A.2d 472 (Vt.1983); State v. Albright, 96 Wis.2d 122, 291 N.W.2d 487 (1980). Contra, People v. Curtis, 681 P.2d 504 (Colo.1984); Culberson v. State, 412 So.2d 1184, 1186-87 (Miss.1982) (suggested but possibly not required); State v. Neuman, 371 S.E.2d 77 (W.Va.1988).
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. See Siciliano, 834 F.2d at 30, quoting Ives, 504 F.2d at 939-40. 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. See Mecier, 460 A.2d at 475. Third, by advising the defendant of his right to testify, the court could influence the defendant to waive his right not to testify, “thus threatening the exercise of this other, converse, constitutionally explicit and more fragile right.” See Siciliano, 834 F.2d at 30. Fourth, a court so advising a defendant might improperly intrude on the attorney-client relation, protected by the Sixth Amendment. See Bernloehr, 833 F.2d at 752 n. 2. Fifth, there is danger that the judge’s admonition would introduce error into the trial. See Albright, 291 N.W.2d at 492. 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. See Hennessey, 502 N.E.2d at 947. Seventh, the judge should not interfere with defense strategy. See Goodwin, 770 F.2d at 637.
For all these convergent reasons we join other circuits and the majority of states in concluding that the court has no duty to advise the defendant of his right to testify, nor is the court required to ensure that an on-the-record waiver has occurred. The defendant’s conduct provides a sufficient basis from which to infer that the right to testify has been waived.
The dissent begins with the indisputable proposition that you can’t waive what you do not know you have. The dissent then points out that the defendant did not know he had a constitutional right to testify that he could exercise despite his lawyer’s advice. The defendant did not know he had this right, nor did anyone else, for this right had never previously been recognized. Consequently, the defendant did not waive the right. Q.E.D. The dissent has set up a right which Martinez could not have waived.
Such a strange conclusion suggests that there is an error in the dissent’s premises. It is not too hard to find. The dissent assumes that the defendant had to know the exact dimensions of his right to testify. [761]*761But to waive his right all that he needed to know was that the right existed.
That he knew that the right existed, i.e., that he knew the state could not bar him from being a witness, is plain from his colloquies with his lawyer. Educated by television and past courtroom experience of his own, Martinez had seen criminal defendants take the stand. He knew he had a right to be heard if he chose. His lawyer did not deny that he did. The defendant’s knowledge of his right led him to insist. Respect for his lawyer’s judgment eventually led him not to persist.
Martinez did not lose the right to testify through any action of the prosecution. Martinez did not lose the right to testify through any action or oversight of the court. Prosecution and court were entirely unaware that he was frustrated in his desire to take the stand. The state did not muzzle Martinez. His disappointment occurred through the decision of his own lawyer.
To hold that a defendant may abide by his lawyer’s advice and not take the stand and then invalidate the trial because he so acted is not fair to the government. Bernloehr, 883 F.2d at 752 (“[a] defendant may not ... indicate at trial his apparent acquiescence in his counsel’s advice that he not testify, and then later claim that his will to testify was ‘overcome.’ ”). As Justice Cardozo long ago reminded us, justice is due the accuser as well as the accused. Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674 (1934). Fundamental unfairness would characterize a process that let defendants have one trial based on their lawyer’s strategy and another trial based on their own. See Strickland, 466 U.S. at 690, 104 S.Ct. at 2065-66.
The opportunity to address the court before sentence is pronounced — the right availed of by Thomas More at a time when English law did not permit the accused to give evidence at all — is carefully preserved by Fed.R.Crim.P. 32(a). The court is under an obligation to address the defendant personally and, before sentencing, ask if the defendant wishes to make a statement in his own behalf. The concerns of the dissent for a defendant who will never have a chance to speak in court are misplaced.
In subtle form the dissent patronizes Martinez by suggesting that there is greater recognition of his personal dignity in invalidating the results of the trial than in affirming the judgment. The patronizing occurs in the assumption that Martinez, who was capable of selecting vigorous counsel, was incapable of simply rejecting counsel’s advice or speaking to the court or discharging his lawyer. No doubt there are occasions when benefits are conferred by those who patronize, but the benefits conferred are at the expense of the dignity of every human person. Adams rejected this kind of paternalistic projection of incompetence on to a criminal defendant. Adams, 317 U.S. at 278-81, 63 S.Ct. 241-43. For better or worse Martinez stayed with Weight. For better or worse Martinez acted upon his lawyer's advice. To recognize that a person may commit himself even though the consequences are not what he would wish, is to recognize the most fundamental of human capabilities. Personal dignity is not honored but diminished when the capacity to commit one’s self is implicitly denied.
AFFIRMED.