SCOTUS holds that trial court may limit discussion between defendant and counsel during overnight trial recess about defendant’s testimony for its own sake but not about issues incidental to testimony.
Villarreal v. Texas, USSC No. 24-557, 2/25/2025, affirming Villarreal v. State, 707 S.W.3d 138 (Tex. Crim. App. 2024) ; Scotusblog page (with links to briefs and commentary)
SCOTUS holds that testifying criminal defendant may be prohibited by trial court from conferring with defense counsel during an overnight recess about testimony for its own sake but not about matters incidental to testimony.
(Our post on the cert grant is available here).
David Villarreal testified at his murder trial in Texas that he acted in self-defense when he stabbed the victim who tried to choke him to death. Villarreal’s direct testimony was interrupted for a 24-hour overnight recess. The trial court instructed defense counsel not to “manage” Villarreal’s testimony during the recess but recognized the defendant’s right to confer with his attorney about certain topics such as sentencing issues. Villarreal resumed his testimony the next day and was convicted of murder. (Slip op. at 2-3). SCOTUS accepted certiorari to address whether a trial court abridges the defendant’s Sixth Amendment right to counsel by prohibiting the defendant and his counsel from discussing the defendant’s testimony during an overnight recess
Writing for the Court, Justice Jackson framed the issue as navigating the “tension” between the defendant’s right to “the advice of counsel unrestricted by judicial interference” and “a witness’s responsibility to offer sworn testimony uninfluenced by a lawyer’s midstream tinkering.” (Slip op. at p. 1). In Geders v. United States, 425 U.S. 80 (1976), the Court held that the trial court violated the defendant’s Sixth Amendment right to the assistance of counsel when it directed him not to consult with his attorney during an overnight recess, which was called while Geders was testifying at trial on direct examination. Thirteen years later however, in Perry v. Leeke, 488 U.S. 272 (1989), the Court held that the trial court did not deny the defendant his right to the assistance of counsel when it prohibited him from consulting with his attorney during a 15-minute recess in the middle of his trial testimony.
The Court considered that Perry recognized a testifying defendant has a constitutional right during a mid-testimony recess to consult with his lawyer about “a wide range of topics – the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain,” but such topics will unlikely be addressed during a short break in the defendant’s testimony. (Slip op. at 7-8). The Court applied Perry’s analysis to hold that “where no nontestimony topics are involved, the Sixth Amendment provided no constitutional right to consultation during breaks in the defendant’s testimony.” (Slip op. at 8). The Court distinguished “discussion of testimony for its own sake,” which may be restricted by the trial court; from “incidental discussion” of testimony, which may not be restricted. For example, a trial court cannot prevent the defendant from consulting with his attorney “on whether and why he should consider a guilty plea – even if the ‘why’ includes the impact of his ongoing testimony on the trial’s prospects.” (Slip op. at 12).
The Court summarized its holding as follows:
Before he begins to testify, a defendant has an absolute right to confer with his lawyer. Once he begins to testify, what was absolute becomes qualified, as the testifying defendant does not have a constitutional right to advice about his ongoing testimony. But the testifying defendant does have a constitutional right to discuss matters that go beyond the content of his own testimony, even though such discussions will inevitably include some consideration of the defendant’s ongoing testimony.
(Slip op. at 14) (internal citations and quotations omitted).
The decision to affirm the Texas court’s judgment was unanimous. Justice Thomas and Justice Gorsuch concurred only in the judgment.
Justice Alito wrote a concurring opinion “to set out the framework under which courts should analyze limitations on communications between a criminal defendant and his attorney during a break in the defendant’s testimony.” (Slip op. at. 1) (Alito, J., concurring). Justice Alito posited that defense counsel, during an overnight break, may discuss the terms of a plea deal with the defendant and suggest the defendant should accept a plea because there is a strong chance the jury would convict the defendant. But defense counsel may not tell the defendant to secure a deal “unless you clean up mistakes A, B, and C that you made today on the stand: “Such efforts would constitute the sort of improper ‘coaching’ that Geders does not allow. They would not be incidental.” (Slip op. at pp. 4-5) (Alito, J., concurring).
Justice Thomas, joined by Justice Gorsuch, concurred in the judgment but did not join the opinion because 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.’” (Slip op. at 7) (Thomas, J., concurring). Justice Thomas considered the Court’s holding with respect to matters incidental to the defendant’s testimony unsupported by the original meaning of the Sixth Amendment or Perry, which stated “’we do not believe the defendant has a constitutional right to discuss his testimony while it is in process.’” (Slip. op. at p. 7) (Thomas, J., concurring).