Villarreal v. Texas: Judges can prohibit attorney-client discussion of content of defendant’s on-going testimony during overnight recess, but can’t limit other topics
By Greg Mermelstein, Deputy Director & General Counsel, Missouri Public Defender
When a trial recesses for the night in the middle of a defendant’s testimony, a judge can prohibit counsel from discussing the testimony’s content with the defendant, but can’t prohibit discussion of other issues, the U.S. Supreme Court held February 25 in Villarreal v. Texas.
The trial court recessed for the night during David Villarreal’s testimony in his murder trial.
Concerned counsel might coach Villarreal’s testimony, the judge ordered his counsel not to have any discussions “managing” his testimony, but allowed discussion of other topics about the trial.
After Villarreal was convicted, the Texas Court of Appeals affirmed.
Holding
The Supreme Court affirmed, in an opinion joined by seven justices, with two concurring in the result only.
In 1976, the Court held, in Geders v. United States, that the Sixth Amendment’s right to counsel prohibits judges from preventing a testifying defendant from conferring with counsel during an overnight recess.
But in 1989, the Court held, in Perry v. Leeke, that judges may prevent a testifying defendant from conferring with counsel during a brief daytime recess.
Geders and Perry illustrate a tension between a defendant’s right to advice of counsel vs. a witness’s responsibility testify uninfluenced by a lawyer’s “midstream tinkering,” the Court said.
The rationale of Geders was that counsel and testifying defendants have legitimate matters to discuss during an overnight recess other than the on-going testimony, the Court said. Those matters include trial tactics, the availability of other witnesses, or the possibility of negotiating a plea bargain.
Perry, however, was based on the “truth-seeking function” of trial, the Court said, since any discussion during a brief daytime recess was more likely to be about the content of the defendant’s testimony.
A “midtestifying defendant does not have a protected Sixth Amendment right to discuss his ongoing testimony with his lawyer”, the Court said.
A court may prevent “discussion of testimony for its own sake – what Perry called ‘nothing but the testimony’”, the Court said.
“A defense attorney may rehearse her client’s testimony before her client takes the witness stand”, the Court said. “And a defense attorney may debrief her client’s testimony after her client leaves the witness stand for good.”
“But for the duration of the defendant’s time on the stand, consultation about the testimony itself – rather than incidental discussion of testimony in service of protected topics – sheds its constitutional protection.”
“This means that … a court cannot prohibit a lawyer from asking his client about a new potential witness or a piece of evidence mentioned for the first time during the defendant’s testimony, or a defendant from asking his lawyer about compliance with the court’s evidentiary rulings”, the Court said.
“What it may prohibit is discussion of testimony for its own sake”, the Court said. “Such discussion threatens to shape the defendant’s testimony and undermine the trial’s search for truth.”
“[U]nder the rule we announce [today], many topics a testifying defendant and his lawyer might discuss during a midtestimony overnight recess remain protected”, the Court said. Those topics include strategy, obtaining factual information necessary to make trial decisions, and whether a defendant should consider a guilty plea.
Any conflict between the Sixth Amendment and the desire for “untutored” testimony must be resolved in favor of the right to assistance and advice of counsel, the Court said.
Justice Thomas, joined by Justice Gorsuch, concurred in the result only.
“I cannot join the Court’s opinion because it opines on hypothetical situations not before the Court and needlessly expands our precedents”, Thomas said.