Attorney-Client Communication During an Overnight Break

When a defendant in a criminal case chooses to testify, and there is an overnight break in the middle of the testimony, can the trial judge forbid the lawyer to talk to the client about the testimony, even while allowing discussion of other topics?

Yes, the U.S. Supreme Court held today in Villareal v. Texas.

The decision drew the line between two bookend cases, Geders v. United States (1976) and Perry v. Leeke (1989).

Geders disapproved a court order prohibiting any communication during an overnight recess. Perry upheld a court order doing so during a brief daytime recess.

The court rejected “Villareal’s hardline position—that the Sixth Amendment permits no restriction of a defendant’s consultation right during an overnight recess—[which] fails to account for the content-related premises underlying Geders and Perry.”

By contrast, Texas’s reading—and now ours—gives content to Perry’s framework: What shifts is the protection afforded to a certain subset of consultation. That subset, we hold, is discussion of testimony for its own sake—what Perry called “nothing but the testimony.” Id., at 284. A defense attorney may rehearse her client’s testimony before her client takes the witness stand. See ABA Standing Committee on Ethics and Professional Responsibility, Formal Opinion 508: The Ethics of Witness Preparation 1–4 (Aug.5, 2023) (Formal Opinion 508). And a defense attorney may debrief her client’s testimony after her client leaves the witness stand for good. Such discussion of testimony qua testimony is entirely proper and the consultation that enables it is constitutionally protected before the defendant’s testimony begins and after it concludes. 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.

The court was unanimous in the result. Justice Thomas, joined by Justice Gorsuch, concurred only in the result, not the opinion. He criticized Justice Jackson’s opinion for the court for going too far outside the actual case and deciding matters not presented.

I am unable to join the majority opinion because it unnecessarily expands these precedents. It purports to “announce” a “rule” under which a defendant has a constitutional right to “discussion of testimony” so long as that discussion is “incidental to other topics.” Ante, at 9, 11, 12, n. 5. It identifies new circumstances, not presented here, in which a defendant supposedly has a right to discuss matters related to his ongoing testimony. Ante, at 9–10, 12. And it endorses a methodology under which “any conflict between the Sixth Amendment and the desire for untutored testimony must ‘be resolved in favor of the right to the assistance and guidance of counsel.’ ” Ante, at 12.

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The majority opinion does not claim that its approach finds any support in the original meaning of the Sixth Amendment. The majority also does not claim that opining on matters not presented by the facts was necessary to decide this case, which involved an order that all agree was constitutional.

Justice Alito did join the opinion but wrote a separate concurrence setting out what he believes to be the correct framework for analyzing these issues.