The following excerpt is from U.S. v. Martinez, 883 F.2d 750 (9th Cir. 1989):
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.
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