Last week, in Villarreal v. Texas (No. 24-557), the U.S. Supreme Court agreed to decide whether a defendant's Sixth Amendment right to counsel was violated when the trial court prohibited him from discussing his ongoing testimony with counsel during an overnight recess. The Court's decision could have significant implications for criminal defendants and the counsel who defend them.
The Supreme Court has considered a defendant's right to counsel while testifying twice before. In Geders v. United States, 425 U.S. 80 (1976), the Court held that an order barring a criminal defendant from "consulting his counsel 'about anything' during a 17-hour overnight recess between his direct- and cross-examination" violated the Sixth Amendment. The ruling was not categorial; the Court did "not reach ... limitations imposed in other circumstances." Case in point: in Perry v. Leeke, 488 U.S. 272 (1989), the Court found no violation of the right to counsel where the trial court prohibited discussions with counsel during a 15-minute recess. Left open by the Court was whether preventing a defendant from conferring with counsel during an overnight recess only about the defendant's testimony would run afoul of the Sixth Amendment.
Cue the current case. As set forth in his petition for certiorari, David Villarreal was charged with his boyfriend's murder, which he claimed was in self-defense. Villarreal took the stand in his own defense, but did not complete his direct examination testimony in one day. Prior to the overnight recess, the trial court instructed Villarreal and his counsel that "[n]ormally your lawyer couldn't come up and confer with you about your testimony in the middle of the trial and in the middle of having the jury hear your testimony," and that he was placing the "burden on" defense counsel "to use [their] best judgment in talking to the defendant because [they] ... couldn't confer with him while he was on the stand about his testimony." Defense counsel subsequently objected to the court's order on Sixth Amendment grounds.
Villarreal was convicted and sentenced to 60 years in prison. On appeal, Villarreal claimed that the trial judge's instruction violated his Sixth Amendment right to counsel. The Texas Court of Appeals and the Court of Criminal Appeals affirmed, noting that the court's order did not violate the Sixth Amendment because it only limited the restriction to discussions regarding the defendant's testimony.
Villarreal petitioned for certiorari, emphasizing that a split among lower courts exists regarding whether the Sixth Amendment guarantees a defendant the right to confer with his attorney about his testimony during an overnight recess. All six federal circuit courts to address this issue, along with three state supreme courts, found that the Sixth Amendment guarantees a defendant the right to confer with his attorney about his testimony during an overnight recess. See United States v. Triumph Capital Grp., Inc., 487 F.3d 124, 132 (2d Cir. 2007); United States v. Cobb, 905 F.2d 784, 791 (4th Cir. 1990); United States v. Santos, 201 F.3d 953, 965 (7th Cir. 2000); United States v. Sandoval-Mendoza, 472 F.3d 645, 652 (9th Cir. 2006); United States v. Cavallo, 790 F.3d 1202, 1212 (11th Cir. 2015); Mudd v. United States, 798 F.2d 1509, 1510 (D.C. Cir. 1986); State v. Fusco, 461 A.2d 1169, 1174 (N.J. 1983); People v. Joseph, 646 N.E.2d 807, 807 (N.Y. 1994); Martin v. United States, 991 A.2d 791, 796 (D.C. Ct. App. 2010).
Those courts generally reasoned that "a defendant's constitutional right to consult with his attorney on a variety of trial-related issues during a long break, such as an overnight recess, is inextricably intertwined with the ability to discuss his ongoing testimony." See, e.g., Triumph Capital Grp., Inc., 487 F.3d at 133. On the other side, Texas and the state supreme courts of Delaware, Kentucky, and Ohio have held that the Sixth Amendment does not guarantee defendants the right to consult with counsel about their testimony during an overnight recess. See Bailey v. State, 422 A.2d 956, 963 (Del. 1980); Beckham v. Commonwealth, 248 S.W.3d 547, 553-54 (Ky. 2008); State v. Conway, 842 N.E.2d 996, 1021 (Ohio 2006).
The Supreme Court's grant of certiorari in Villarreal v. Texas demonstrates that at least four justices are interested in clarifying this issue regarding a defendant's constitutional right to counsel. As the petition for certiorari highlights, this issue is a crucial one, as "the defendant's testimony permeates every aspect of counsel's advice" so that there "is no way to separate discussions of testimony from discussions of trial strategy." If the weight of existing authority is any indication, the Court seems poised to upend the Texas courts' decisions and extend the Sixth Amendment right. However, if the Court goes the other way and affirms the lower court's decision, it would have significant implications for criminal defendants and defense counsel, who will have to make difficult decisions about what crosses the impermissible line between proper and improper overnight consultations.
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