A Trial Court Order Limiting Communications Between Defendant and Attorney May Be Valid

The United States Supreme Court today, in an opinion by Justice Jackson (Villareal v. Texas, No. 24-557), held that defendants in criminal cases who are on the stand can be restricted from discussing their testimony with their own lawyers during overnight recesses.   Previously, in Geders v. United States, 425 U. S. 80 (1976), the Supreme Court had held that a trial court may not prevent a testifying defendant from conferring at all with his lawyer during an overnight recess. However, in Perry v. Leeke, 488 U. S. 272 (1989), the Court had held that a trial court may prevent a testifying defendant from conferring with his lawyer during a brief daytime recess.  Now, the Court in Villareal has held that, while Geders prohibited a complete ban on communications overnight, it is permissible for a trial court to ban discussion about the testimony thus leaving counsel and client to discuss such things as possible “sentencing issues.”

This decision purportedly balances the Sixth Amendment right to assistance of counsel with the danger of a “truth-undermining” consultation.  Hence, it affirmed Geders on a prohibition of a total ban while it also affirmed Perry allowing a total ban during brief recesses.  In footnote 3, the Court specifically excluded from its determination attorney-client discussions if there is no restrictive order.  This is a logically tidy but disturbing set of distinctions.

Nevertheless, it should be clear from Villareal that the trial court has the authority to order non-conferral orders with regard to other witnesses.  For instance, the court could ban communications between a prosecution witness and the prosecuting attorney (including victim-witness coordinators and investigating officers) during both short and overnight recesses.  Perry covers total bans during short recesses and Villareal would permit total bans during overnight recesses as to witnesses other than a defendant.  The only basis for the limited consultation between a criminal defendant and counsel is the right to Sixth Amendment which does not apply to other witnesses. 

Therefore, Villareal should make it clear that a “truth-undermining” ban on all communications of witness with anyone during any and all recesses is lawful, with the one exception for limited communications between a criminal defendant and counsel. An order, if requested and granted, should extend to all civil cases, including civil litigants, expert witnesses and witnesses represented by their own counsel.  Of course, in both civil and criminal cases, it is a strategic decision whether to request an order but, if so, the request should be carefully crafted.