The Court’s decision is out in Villarreal v. Texas, No. 24-557 (2026), and it’s as bad as I would expect. That it is authored by a former public defender (even if only of a couple of years’ experience)… sigh. And with no dissent. But, again, nothing unexpected, because all the Douglases, Brennans, and Marshalls are gone. Long gone.
In Geders v. United States, 425 U.S. 80 (1976), a unanimous Court held that prohibiting defense attorney-client contact during an overnight recess violated the Sixth Amendment right to assistance of counsel. Easy. It matters not that the recess occurred during the defendant’s testimony. What’s that have to do with anything? Nothing. Zero. Nada. There is a single constitutional right at play, and its role is obvious: a criminal defendant must be allowed to consult with her counsel during any trial recess, as trial is a most critical stage of the prosecution. Unanimous and easy.
‘What about sequestration of witnesses?!’ an ignorant person might ask. “[T]he petitioner was not simply a witness; he was also the defendant,” replied the Geders Court. Precisely. Most witnesses have no Sixth Amendment right. The defendant does. Easy.
That’s not to say that Geders didn’t have a worrying line or three. “A prosecutor may cross-examine a defendant as to the extent of any ‘coaching’ during a recess.” Questioning like that might work fine when asked of a trained attorney who understands precisely what is and is not permitted to be asked, but it is a minefield for the layperson, and doubly so for the criminal defendant. Still, Geders basically got things right:
To the extent that conflict remains between the defendant’s right to consult with his attorney … and the prosecutor’s desire to cross-examine the defendant without risk of the intervention of counsel, … the conflict must, under the Sixth Amendment, be resolved in favor of the right to the assistance and guidance of counsel.
Exactly right—constitutional rights win over desires of prosecutors.
Only I’ve removed a few words there, and those additional words rightly caused Justices Marshall and Brennan some concern. The full quote is this (emphasis added):
To the extent that conflict remains between the defendant’s right to consult with his attorney during a long overnight recess in the trial, and the prosecutor’s desire to cross-examine the defendant without the intervention of counsel, with the risk of improper “coaching,” the conflict must, under the Sixth Amendment, be resolved in favor of the right to the assistance and guidance of counsel.
During a long overnight recess… that implies things might be different during a shorter trial break. Thus, Marshall wrote a concurrence, joined by Brennan, making explicit there ought to be no different rule for different-sized breaks:
In my view, the general principles adopted by the Court today are fully applicable to the analysis of any order barring communication between a defendant and his attorney, at least where that communication would not interfere with the orderly and expeditious progress of the trial. …
The only justification expressly considered by the Court in its opinion is the desire to avoid the risk of unethical counseling by an attorney. The Court holds that the fear of unethical conduct is not a sufficient ground for an order barring overnight communication between a defendant and his attorney, and the same would hold true absent the most unusual circumstances, I take it, for an order barring consultation between a defendant and his attorney at any time before or during the trial. If our adversary system is to function according to design, we must assume that an attorney will observe his responsibilities to the legal system, as well as to his client. I find it difficult to conceive of any circumstances that would justify a court’s limiting the attorney’s opportunity to serve his client because of fear that he may disserve the system by violating accepted ethical standards. If any order barring communication between a defendant and his attorney is to survive constitutional inquiry, it must be for some reason other than a fear of unethical conduct.
Quite right.
But while I am a child of the 80s—may its music ever reign—for constitutional criminal procedure, the 80s times were a changin’. Thus, when the matter returned to the Court in 1989 in Perry v. Leeke, 488 U.S. 272 (1989), Brennan and Marhsall (and Blackmun) would dissent. The Perry Court invented a constitutional obligation of the criminal defendant ‘as witness,’ and then weighed that imagined constitutional thing against the actual, textual Sixth Amendment right to the assistance of counsel, and compromised between the two—Geders remains, but a court can prohibit all defense attorney-client communication during a short recess in a defendant’s testimony.
Before I go on, it’s worth noting that the Justice who wrote that gobbledygook for the Perry Court was capable of tremendous damage when he deviated from his often-compatriots Brennan and Marshall. It was Justice Stevens, making the lineup of Perry much like the lineup of Arizona v. Youngblood, 488 U.S. 51 (1988)—there Stevens concurring in the judgment; Brennan, Marshall, and Blackmun dissenting. Hindsight is ever unfair, but when you read that Stevens opinion knowing that DNA would later exonerate Youngblood, who died without apology or compensation… yikes. And this is, of course, precisely why the actual, textual Sixth Amendment rights of criminal defendants are so freaking important. Because even with them, we crucify too many Youngbloods.
Once Perry came down as it did, Villarreal was just waiting in the wings. Marshall’s Perry dissent is excellent and I highly recommend a full read, but for our purposes I will merely share its opening:
In Geders v. United States, we held unanimously that a trial judge’s order barring a defendant from conferring with his attorney during an overnight recess violated the defendant’s Sixth Amendment right to the assistance of counsel. The majority holds today that when a recess is “short,” unlike the “long recess” in Geders, a defendant has no such constitutional right to confer with his attorney. Because this distinction has no constitutional or logical grounding, and rests on a recondite [fantastic word!] understanding of the role of counsel in our adversary system, I dissent. Contrary to the majority’s holding, the Sixth Amendment forbids any order barring communication between a defendant and his attorney, at least where that communication would not interfere with the orderly and expeditious progress of the trial. [cleaned up]
But that’s a dissent. And hence Villarreal, which permits a court to prohibit defendant-defense attorney consultation regarding her testimony during an overnight recess. Just how far we’ve come from the Geders day in which a Marshall or Brennan (or spirit Douglas) could be in a unanimous Court, we see from the beginning of Justice Jackson’s opinion of this Court:
A criminal defendant has many unassailable rights during his trial, including the right not to testify and the right to access his lawyer. [Indeed.] But if and when a defendant takes the witness stand in his own defense, his status shifts. [Huh?!] He does not shed his rights as a criminal defendant. [Holy shit! Of course not. How could one think otherwise?!] But he does assume some of the burdens of a testifying witness. [Sigh… the Perry imagined-constitutional-right-of-the-State crystalizes.]
This case requires us to navigate a tension between one of those rights and one of those burdens. [You mean a tension between a right and an imagined thing.] The right is a defendant’s entitlement to the advice of counsel unrestricted by judicial interference. [Yup… that would be in the Sixth Amendment.] The burden is a witness’s responsibility to offer sworn testimony uninfluenced by a lawyer’s midstream tinkering. [Which… most definitely is not in the Constitution, as the State has no Bill of Rights rights.] Both are longstanding and fundamental [not so], as the right forms the heart of the Sixth Amendment’s right to counsel [yup] and the burden serves the central truth-seeking function of a trial [not in the Constitution].
You get the drill. Now that we have not a single Justice who understands that a criminal trial is in part a search for truth, holdings like Villarreal are to be as expected as they are depressing.
From Justice Douglas, dissenting in Williams v. Florida, 399 U.S. 78 (1970) (emphasis added):
A criminal trial is in part a search for truth. But it is also a system designed to protect “freedom” by insuring that no one is criminally punished unless the State has first succeeded in the admittedly difficult task of convincing a jury that the defendant is guilty. That task is made more difficult by the Bill of Rights … . The Framers decided that the benefits to be derived from the kind of trial required by the Bill of Rights were well worth any loss in [accuracy and] “efficiency” that resulted. Their decision constitutes the final word on the subject, absent some constitutional amendment.
Quite right, I think. But the Supremes are supreme… so, not so much in practice anymore.
Thus, here’s the clear-as-mud-in-practice new constitutional rule:
A defense attorney may rehearse her client’s testimony before her client takes the witness stand. 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.
This means that, as even [the State] acknowledges, 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. What it may prohibit is discussion of testimony for its own sake. Such discussion threatens to shape the defendant’s testimony and undermine the trial’s search for the truth.
Got it? Don’t be discussing that testimony for its own sake. … I don’t really get it. But there’s more:
For example, a court cannot prohibit a defendant from obtaining his attorney’s advice 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. The Sixth Amendment does not abide a take-my-word-for-it vision of the attorney-client relationship. It does, however, tolerate a midtestimony conferral order prohibiting discussion of testimony as such, lest that discussion shape future testimony “in light of the testimony already given.”
Not for its own sake… not “as such.” Hm…
[T]he 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.” We say no more than that today.
It’s your baby.
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