*1 v. LEEKE, COMMISSIONER, CARO- SOUTH PERRY CORRECTIONS, LINA DEPARTMENT OF et al. January Argued November 1988 Decided No. 87-6325. *2 Court, Fairey, appointment W. Gaston petitioner. filed a brief for the cause and 1004, argued Zelenka, Attorney General Deputy J. Chief Donald himWith cause for Carolina, respondents. argued South Medlock, General, and Attorney T. Travis the brief were Anders.* C. James of the Court. opinion delivered the
Justice Stevens (1976), 425 U. we held S. In v. United Geders to consult directing order a trial court’s of Criminal Defense for National Association May brief filed a *Jon urging reversal. Lawyers curiae as amicus attorney overnight his the de- recess, called while Amend- stand, fendant was on violated Sixth the witness Today we consider ment of counsel. to the assistance applies entered at to a similar order whether the rule Geders beginning recess. afternoon of a 15-minute
I by jury participat- and convicted tried Petitioner was kidnaping, His and sexual assault. ing murder, in a brutal part in ab- taken an active he had not was that defense participation in sex- and that his homicide or the duction product offered on Evidence of duress. was the ual assault mildly and that he was retarded that he indicated behalf *3 his easily person could be influenced who was a nonviolent testify began in his own stand and He took the others. after a lunch recess. defense testimony, judge direct the trial
At the conclusion of his advance notice to recess, and, without declared 15-minute any- petitioner allowed to talk to that not be counsel, ordered lawyer, during including the trial the break. When his one, judge The denied for a mistrial. resumed, counsel moved petitioner explaining then a “was a sense motion, the cured or as- not entitled to be the He was ward of Court. helped approaching his cross examination.” sisted or 4-5. petitioner’s Supreme affirmed Court of South Carolina Perry, E. 2d 324 490, 299 S. v. 278 S. C.
conviction. State (1983). controlling because was not It concluded that Geders emphasized opinion that a de- the fact in that case had our normally an over- with counsel would confer fendant explicitly night that “we do not stated that we had recess and imposed circumstances.” in other with . . . limitations deal supra, at 91. The state court v. Geders explained: ‘normally significanceto the words confer.’
“We attach permitted Normally, to confer with his defendant client between direct examination and cross examination. Should counsel for a defendant, after di- rect examination, request the judge to declare a recess that he talk so with his client might before cross exami- nation would and should begins, unhesitatingly C., 491-494, 278 S. deny request.” 2d, S. E. at 325-326. that a
Justice Ness dissented. He out pointed his a short routine lawyer during would confer with normally recess and therefore that Geders should apply. Moreover, his defendant’s fun- opinion importance protecting damental to the assistance of counsel far outweighs value of from negligible preventing lawyer “coaching” or her client a brief recess.1
Thereafter, petitioner sought
obtained
federal writ of
Circuit,
habeas
settled law the Fourth
corpus. Applying
Allen,
1“I
agree
States]
with the Fourth Circuit decision
[United
(1976),
denied,
(1977)],
[
“Even that be weapons without to com- opposing judge and the trial are not that counsel cross-examine con- lawyer. prosecutor bat the unethical is free to may direct the any ‘coaching,’ cerning the extent of or the completed. Addition- interruption until examination to continue without Allen, likely in- ally, lawyer to lie will as noted in a and client determined trial; thus, little polish story long the State benefits vent and before recesses. depriving during of counsel short from outweighs neg far right “I think the Sixth Amendment to counsel minutes trial.” restricting right that for a few ligible value of 495-497, 2d, (dissenting C., 327-328 Perry, 299 S. E. State v. 278 S. opinion).
276 although the District Court held that a defendant no has to be cross-examination, coached on he does have a a brief he recess and need demonstrate prejudice his from the of that order have denial Allen, 17-19; see States v. conviction set aside. United (1976), cert. 430 S. 908 denied, F. 2d U. 1205, 1206-1207 Bordenkircher, 689 F. 2d Stubbs v. (1983). (1982), denied, 461 cert. U. S. Appeals, sitting F. banc, en reversed. 832
The Court of agreed Court It with the that Geders 2d 837 District applied occurred, error had and that constitutional but it con- petitioner’s conviction should stand that because the cluded prejudicial. This was not conclusion rested error on the opinions in that our v. Cronic, court’s view States (1984), Washington, and Strickland U. S. (1984), implied pose that trial errors of this kind do not a fair trial that reversal of a con- a fundamental threat to
such record, After of the be automatic. a review viction should against peti- Appeals found that evidence the Court of “overwhelming,” F. and that there 2d, tioner was believing performance cross- for that his no basis was given have he been an would been different had examination lawyer during opportunity recess. to confer the brief They judges argued that Geders had Four dissented. interpreted properly in earlier Fourth Circuit cases to been majority’s require reliance automatic reversal misplaced prejudice inquiry because the on Strickland was employed to determine whether a Sixth in that case was had occurred—not to determine Amendment violation they acknowledged consequences Moreover, violation. prejudice inquiry particularly inappro- was reasoned inevitably priate almost context because would this private require client discussions between review lawyer.
277 Because the question presented by this case is im- not only portant, but also one frequently arises,2 we cer- granted tiorari, 485 976 U. S.
2
courts
expressed
Federal
state
since Geders have
varying views
constitutionality
barring
on
of
orders
criminal defendant’s
to
access
Lane,
attorney during
her
a trial
v.
F.
his or
recess. See Sanders
861
2d
(CA7 1988) (denial of
during
1033
access to counsel
lunchtime recess while
still on
stand
of
defendant
witness
violation
the Sixth Amendment without
harmless);
prejudice,
Dugger,
but
held
Bova v.
858
consideration
error
(15-minute
1540 (CA11 1988)
1539,
“sufficiently long
permit
F. 2d
recess
to
meaningful consultation between defendant and his counsel” and therefore
attorney-defendant
bar
violation
though
discussion constitutional
even
cross-examination);
during
Wainwright,
defendant on stand
v.
Crutchfield
(CA11 1986) (en banc) (6
2d
judges
803 F.
of 12
hold that if defendant
record,
indicates,
recess,
during
or counsel
on the
a desire to
confer
then
any
violation;
per
denial
consultation is a
se constitutional
hold
judges
that restriction
regarding testimony during
on discussion with counsel
brief
objection
recess near end of direct examination when no
was raised
violation;
does not constitute constitutional
holds
that a violation
may
confer,
actually
prej
exist
defendant
counsel
desired to
but then
gain postconvietion relief),
denied,
need
udice
be shown to
cert.
483 U. S.
(1987);
78, 79-83,
Mudd v. United
D. C.
798 F.
(order
(1986)
1509,
2d
permitting
speak
1510-1514
counsel to
with
defense
testimony during
client about all
re
matters
than client’s
weekend
violation);
per
while
cess
client on stand
se
Amendment
United States
Sixth
(CA11 1984)
Romano,
(Sixth
vi
v.
736 F. 2d
1435-1439
Amendment
when judge
attorney-defendant
only regarding
olation
barred
discussion
recess),
testimony during 5-day
part
defendant’s
on other
vacated
(CA11 1985);
v.
F.
grounds,
Vasquez,
F. 2d 1401
2d
States
1984)
(CA11
adopt
(refusing
847-848
to
rule “that counsel
inter
rupt
proceedings
any
or
court
time to confer with his
her client about a
case,”
in the
affirming
request
matter
thus
denial of
to consult
counsel’s
counsel);
explanation
with client
court’s sidebar
Stubbs
1982) (denial
(CA4
Bordenkircher,
689 F. 2d
1206-1207
of access
constitutionally im
counsel
lunch recess while defendant on stand
permissible,
deprivation
showing
but no
counsel here because no
attorney
so
that defendant desired
consult with
and would have done
but
Redman,
restriction),
denied,
Bailey
for the
cert
II
showing
There is merit
of
petitioner’s argument
of
essential
of violation
prejudice
component
not an
order),
denied,
with
but for
cert.
454
ant
have conferred
counsel
would
(CA2
(1982);
140,
DiLapi,
F. 2d
147-149
1153
States v.
651
U. S.
United
1981) (denial
during 5-minute recess while
of access to counsel
defendant
violation,
case),
nonprejudieial
but
this
cert.
on stand Sixth Amendment
(1982);
2d,
(Mishler, J.,
denied,
S.
651 F.
at 149-151
concur
455 U.
938
(no
attorney
right
during
to consult with
ring)
Sixth Amendment
cross-
examination; instead,
requirements
process
Fifth Amendment’s due
should
unfair);
denial of
to
govern
such
access
counsel rendered trial
whether
(CA5 1980) (denial
641,
Conway, 632
v.
F. 2d
643-645
of
United States
ac-
during lunch
while
on
cess
recess
defendant
stand violation
to counsel
of
counsel);
v.
right
Bryant,
effective assistance
United States
545 F.
to
2d
1976)(denial
(CA6
1035,
during
to
access
counsel
lunch
1036
recess while
counsel);
of right
Allen,
on stand violation
defendant
States v.
1976)
(CA4
(“[A]
630,
restriction on a
right
542 F. 2d
632-634
defendant’s
attorney during
a brief routine recess is constitutionally
to consult with
stand),
denied,
impermissible,”
while defendant is still on
cert.
even
430
(Ala.
691,
(1977);
State, 424
Ashurst v.
So. 2d
691-693
Crim.
U. S. 908
1982)(bar
during
attorney
defendant’s testi
App.
on defendant’s access to
recesses,
counsel);
mony, including
violates
State v.
all breaks and
(1987) (denial
585,
of access to
Mebane, 204
break but error cured permitting discussion with counsel stand); opportunity for further People redirect after defendant left v. (1982) (Sixth Hagen, 86 Div. 2d N. Y. 91 446 S. 2d Amendment when still-testifying discussing violation barred defendant from tes- recess). attorney timony during overnight Const., (“In prosecutions, U. Arndt. all 3See S. criminal the accused enjoy shall ... have the Assistance of Counsel for his defence”). violates
“Government to effective assistance ways ability when it interferes certain with the independent counsel to make decisions about to con how g., duct the defense. e. See, Geders v. United (bar (1976) attorney-client consultation U. S. recess); overnight Herring York, 422 S. v. New U. (1975) (bar trial); bench Brooks on summation at (1972) (requirement U. S. Tennessee, 406 witness); Ferguson v. defense be first that defendant (1961) (bar Georgia, 570, 593-596 on direct defendant). Counsel, however, can also examination deprive assistance, of the effective a defendant failing ‘adequate legal simply by assistance,' to render Cuyler Sullivan, S., Id., 446 U. at 344. 345- (actual adversely affecting of interest conflict law ineffective).” yer’s performance Id., renders assistance at 686. was intended to make of Geders this context citation
Our *8 “[a]ctual of the assistance of or constructive denial clear that supra, Washington, altogether,” Strickland ap- analysis subject prejudice that to the kind of is not 692, lawyer’s quality determining propriate of a in whether constitutionally performance ineffective. See itself has been supra, ante, Cronic, Ohio, States v. 88; Benson accept 25. the rationale of Thus, n. we cannot 659, Appeals’ decision. the Court
Ill underlying question persuaded, that the however, are We right petitioner to confer with had constitutional whether testimony attorney during in his 15-minute break —a carefully preserved cor- question we Geders—was that by Supreme rectly Ad- Carolina Court. the South resolved mittedly, facts and the facts of line of Geders between is, however, It line of constitutional thin one. case is a this expressed by contrary the views Moreover, to dimension. the dissenting member of the South Carolina Supreme Court, 1, see n. supra, is not one that rests on an assumption trial counsel will engage unethical “coaching.”
The distinction rests instead on the fact that when a de- fendant witness, becomes a he has no constitutional consult with his while lawyer he is He testifying. has an ab- solute to such consultation before he begins testify, but neither nor his he has a lawyer to have the testi- mony order to him interrupted the benefit of give counsel’s advice.
The reason for the rule is one that
applies
all wit-
nesses —not
defendants.
just
It is a common practice for a
instruct a witness not to discuss his or her testimony
with third
until
parties
the trial
is completed.4
Such
nondiscussion orders are a corollary of the broader rule that
witnesses
bemay
sequestered to lessen the danger that their
will
testimony
be’influenced by
what
hearing
other witnesses
have to
and to
say,
increase the likelihood that
will
they
con-
4See,
g., Jerry
e.
Equipment
Parks
Co.,
Co. v.
Equipment
Southeast
(CA5 1987)
817 F. 2d
342-343
(improper
by
discussion of case
defense
counsel);
Greschner,
witness with defense
United States v.
802 F. 2d
(CA10 1986) (circumvention
sequestration
order where “wit
indirectly
purpose by discussing testimony
nesses
defeat its
they have
given and
in the
events
courtroom with other witnesses who are to
denied,
(1987);
testify”),
Johnston,
cert.
283
“Once the defendant places himself at the
heart of the
very
it
process,
only comports with basic fairness that
the
story
on direct
presented
is measured for its accuracy and
uninfluenced
completeness by
testimony on cross-examina
tion.” United States
(CA2
DiLapi,
651 F.
2d
1981) (Mishler, J.,
denied,
cert.
concurring),
Thus, as a trial has the just judge unquestioned power refuse to declare a recess the close of direct testimony —or the examination of a witness —we think any point the the must also have to maintain the status power in which quo a brief recess there is a virtual certainty 2d, DiLapi, 7See F. (Mishler, J., United States v. at 149-151 con curring) (emphasis original): “[W]e must for the also account function of cross-examination in the trial process in construing the guarantee Sixth Amendment of counsel. “ age-old ferreting ‘The tool for out truth in process the trial is the past, cross-examination. “For two policy centuries Anglo- of the system American regard of evidence has been to necessity testing by cross-examination as a vital feature of the law.’” Wigmore, Evidence (Chadbourn 1974). § importance rev. cross-examination to English judicial system, continuing importance inception and its since the judicial system testing of our by facts offered the defendant on di- rect, suggests . . . that the to assistance of counsel did not include the right to have counsel’s advice on cross-examination. consistently
“The acknowledged Court has the vital role of cross-exami- in the truth. It recognized nation search for has that the defendant’s deci- stand, testify behalf, to take the places sion and on his own question into credibility his prosecution as witness and that the has the to test his credibility on cross-examination. . . . Once places the defendant himself at very process, only heart of the trial comports with basic fairness that story presented accuracy on direct is measured complete- for its ness uninfluenced on cross-examination.” (J. 1974) § Wigmore, Cf. 5 J. Evidence 1367 (calling Chadbourn rev. cross- greatest legal engine examination “the discovery ever invented for the truth”); (1988) Weinstein, (cross-examination, J. Evidence ¶800[01] Anglo-American system,” “‘vital feature’ of the light “‘sheds on the wit- ” narration,’ memory perception, expose inconsistencies, ness’ and “can incompletenesses, testimony”). and inaccuracies lawyer any and the the witness conversation between testimony. ongoing *11 said, As we have we would relate to the right to dis- a constitutional do not has believe the defendant process. testimony it is in while cuss that be- interruption different character was of a Geders The attorney and client consultation between normal cause the encompass overnight mat- would recess that occurs beyond testi- go the defendant’s own content of the that ters a constitutional mony-matters does have the defendant that availability lawyer, as the of right such with his discuss possibility nego- tactics, or even the of witnesses, trial right bargain. plea defendant’s to unre- tiating It is the a lawyer variety for advice on a of trial- to his access stricted controlling long in the context of a that is matters related States, 425 S., v. United U. at 88. The Geders recess. See inevitably will include consid- discussions some such fact that testimony ongoing does not com- the defendant’s eration of right. promise recess in which it is basic But a short that testimony nothing presume appropriate the will that but testifying discussed, does not have a con- defendant be right to advice. stitutional judges must forbid does not mean that trial conclusion
Our
during such
a defendant and his counsel
between
consultation
cases,
individual
As a matter of discretion
brief recesses.
judges,
practice
indeed,
or
as mat-
for individual trial
ofor
appropriate
per-
well be
in some
ter of law
merely
that the Federal
We
hold
consultation.8
mit such
every
judge
compel
allow
does not
Constitution
lawyer
is
with his
while
to consult
defendant
between counsel and
Alternatively,
judge may permit consultation
recess,
testimony.
ongoing
but forbid discussion
during such a
defendant
(no
5-6,
2d,
Stroner,
3d,
N. E.
at 351
Ill.
People See
discussing
judge barred defendant from
when
to counsel
violation of
attorney, during 30-minute re
contact with
testimony,
permitted other
but
stand),
part
part and rev’d in
on other
aff’d in
cess while
204,
Affirmed. part. concurring in Kennedy, Justice holding opinion join and the I I III of the Court’s Parts petitioner to as- not his constitutional was denied ruling, quite it is unnec- In view our sistance of counsel. prejudice essary must be shown when the whether to discuss issue, I denied. would address to counsel is opinion. join II I Part Court’s and so decline to Brennan Marshall, with whom Justice *12 Justice join, dissenting. Justice Blackmun (1976), we held In v. United Geders barring .unanimously judge’s a order that a attorney during overnight conferring his recess from with right the Amendment to as- defendant’s Sixth violated the today that when a sistance of counsel. The holds “long in Geders, a defend- “short,” recess” recess is unlike right his confer with attor- ant no constitutional to has such ney. Ante, has no con- Because this distinction 284. logical grounding, a and rests on recondite stitutional or system, adversary understanding counsel in our of the role of I dissent.
I holding, Contrary majority’s the Sixth Amendment barring “any communication between a defend- order forbids attorney, least where that communication ant and his expeditious pro- orderly and with the would not interfere supra, Geders, J., gress at 92 con- the trial.” (Marshall, hardly (emphasis original). curring) novel; This on view is Appeals every contrary, this to consider issue Court including en Fourth Circuit this banc Geders, since (1987), has bar on 837, 839 concluded case, 832 F. 2d attorney-defendant contact, recess, even a brief im- permissible objected by Lane, counsel. See Sanders v. (CA7 1988) cases). (collecting F. 2d With . very exceptions, appellate few the state courts ad- that have agreed. majority attempts dressed this issue have sidestep point, stating “[f]ederal this and state expressed varying courts since Geders have the con- views on stitutionality barring of orders a criminal defendant’s access attorney during to his or her a trial Ante, recess.” added). (emphasis n. 2 agreement dis- To the extent there has been courts, in the lower limited however, it has been separate question to the viola- whether a Sixth Amendment predicated preju- subject tion on a bar order should be analysis question dice or which harmless-error sole —the granted the Court certiorari in this case. concluding In Amend- that bar orders violate the Sixth faithfully ment, the lower courts have this Court’s reflected long-expressed guar- view that “the Assistance of Counsel” perforce anteed under the Constitution the defend- includes aspects ant’s to confer counsel about all of his case: many
“‘The be, cases, to be heard would little comprehend avail if it did not heard to be [A defendant] counsel. ... is unfamiliar with the rules of knowledge evidence. . . .He lacks both the ade- skill and quately prepare though [may] he defense, even *13 perfect requires guiding have a one. He hand of every step proceedings against of the him.’” (1932), quoted Alabama, Powell v. 287 45, U. S. 68-69 supra, Geders, at 88-89. (1938); Zerbst, v. 458, See also Johnson 304 U. S. 462-463 Wainwright, (1963); v. 335, Gideon 343-345 (1967); Argersinger Wade, v. 388 U. States S. Hamlin, 407 U. S. v. Cronic, United States long cases, U. S. This line of which proposition right for the that a defendant has the stands stage adversary proc- the aid of counsel at each critical of the conspicuously majority’s opinion. ess, is absent from the legacy particularly glar The omission this constitutional ing given perceive “[i]t stage is difficultto a more critical taking guilt.” of evidence on . . . than the the defendant’s (CA6 1987). F. 2d Arn, Instead, Green obligatory the head to the fundamental nature nod of after strings together majority right several counsel, the of the unsupported assumptions assertions and con unstated attorney-defendant discussions short trial cludes they might may completely because barred dis- be recesses truth-seeking majority’s The function. con the trial’s serve important rights clusory approach ill befits the at stake case. this
A by majority begins analysis stating that a defend- The its lawyer right to consult with his ant “has no constitutional added). (emphasis testifying.” This Ante, while he is at 281 Perry point. nor his counsel Neither truism is beside the Perry’s “testimony interrupted sought order to have Perry give ibid.; nor has advice,” him the of counsel’s benefit interrup- suggested to the that he had a constitutional question separate This case instead involves the tion. lawyer a defendant has a to talk to his whether after independent has called a recess for some reason lawyer’s talk or the defendant’s desire to to the defendant lawyer. talk to his desire to majority blurs the real issue in this case de-
The further allowing lawyers scribing practice of not defendants or corollary interrupt as a of the the defendant’s sequestered.” Ibid. witnesses be rule that “broader lengthy provides footnote which con- The even Appeals discussing cases citations to several Court tains sequestration. purposes 281, n. Ante, witness 4. logic sequestration majority’s is that rules flaw in the major- inapplicable Defendants, as the to defendants. are enjoy acknowledges, ity under a constitutional later *14 against them. the Sixth the witnesses Amendment confront S., 88. Ante, Geders, at see 425 U. at 282; also majority’s premise a the is whether The issue false —that lawyer his “while he the to consult with defendant has greater-includes-the- conjures up testifying” naturally a is — interrupt Perry argument: his no testi- had lesser expectation mony; that he no reasonable therefore had he any during permitted inter- to confer with would be by rejected judge. ruption Yet, provided we the trial this judge sought argument in the There, Geders. facile merely ground justify it order on the was an “ac- his bar during he had a called recess the defendant’s cident” that testimony. dismissing Geders, n. 1. In S., 425 U. at this inquiry the as notion, did frame whether recesses nor- we mally testimony. the course of defendant’s occur normally Instead, asked whether consultations occur we dur- independent ing recesses called for some reason the trial judge. supra, Lane, at Id., 88; see also Sanders v. (Winter, dissenting). 2d, J., n. 832 F. n. C. 1; majority dispositive recognizes To the extent interrupt, fact is defendant’s but rather the le- not a expectation may speak lawyer gitimacy his that he by grounding interruption, it so its hold- such an does forbidding attorney-witness ing general “rul[e]” contact on a Ante, and cross-examination. between a witness’ direct on the view “that “rule,” told, This we are is based 282. likely responses to elicit truthful cross-examination is more opportunity allowing goes without the witness forward including lawyer.” parties, his or her with third to consult majority applicable defendant, “rule” to a Ibid. This stand, takes the because when contends, “generally appli- nonparty applicable are witnesses rules to him as well.” Ibid. cable reasoning are In line of manifold. this defects authority place, whatsoever for cites no its
first
289 authority presence “rule.” if Even such exists, the of con- trary authority any suggestion prac- undercuts that settled expectation tice renders unreasonable a defendant’s that he lawyer speak during with his will be able to a brief recess.1 further than the facts of need look no this case to see that One majority’s often honored “rule” is the breach. The the three recesses at least while witnesses trial declared testifying, 213, 274, 517; Tr. two were of these for the State testimony but the end of direct before cross- recesses came at During begun. Id., 213, at 517. none examination had judge issue a the trial bar order. these recesses did anyone, free to consult thus were with in- State’s witnesses cluding prosecutors, during Similarly, these the breaks. nearly every by majority in case cited the its collection post-Geders cases, ante, 277-279, 2, n. there is no indica- speaking tion that witnesses for the State were barred from prosecutor attorneys during with the or their trial recesses. routinely Even is correct that trial courts attorney-witness during bar contact recesses between direct lumping together its cross-examination, of defendants ignores with all other would still flawed, witnesses be for pivotal fact that the Sixth Amendment accords defend- rights beyond ants constitutional above and those accorded generally.2 recognized unique witnesses We the defendant’s 1See, g., S., (1961); § e. United States ex rel. Law 23 C. J. Criminal 1025 District, Lovinger the 19th 1336, v. Circuit Court Judicial Supp. 652 F. for (ND 1987), (CA7 State, aff’d, 1988); Ill. F. 2d 739 v. 383 Griffin (Ala. Pendleton, 1980); People v. App. So. 2d 878-879 Crim. 75 Ill. 580, 594-595, N. cf. United States 3d E. 2d (CA4 1976) (“While Allen, 630, 633, 542 F. n. 1 sequestering 2d universal, practice origin witnesses is of ancient has never been which suggests danger influencing by that the witnesses feared so much some others”). not at all feared 2Likewise, majority’s equation of a defendant’s discussions with his ante, attorney parties,” with a defendant’s discussions with “third seriously misapprehends the nature rights. of Sixth Amendment status Geders: “the was not a he petitioner simply witness; was also the defendant. ... A nonparty ordinarily witness has little, than his own discuss testimony, counsel; a defendant criminal case must often consult 88; S., with his 425 U. see also attorney trial.” 1981) (“The (CA2 F. United States DiLapi, 2d not to speak were cautioned fact that other witnesses justify prohibition upon recesses does anyone *16 conversations”).3 The in its majority, defendant-lawyer distinction.4 this axiomatic haste, today overlooks B of the how- aspect majority’s opinion, The troubling most that a defendant ever, allowing speak is its assertion a “short” recess between direct and attorney during retard the invariably truth-seeking cross-examination will notion as an the trial. this is described Although function of ante, system, our “empirical predicate” adversary it. of evidence to majority provides support not shred in Furthermore, that, to acknowledge fails majority Arkansas, 57-58, and n. 15 Glasser v. 3Cf. Rock v. 483 U. S. point The trial did at one recognize Perry sig was like the witnesses. The that defendant however, him, escaped justified nificance of this for he the bar distinction Perry on imposed part ground on the “no one is trial but order apply only Perry rights Amendment to one who is on Mr. .... 6th reasoning on its head. App. 5. This stands Sixth Amendment trial.” furthermore, errs, ante, assuming, that de 4The nonparty subject as to the same rules of cross-examination fendants are Cleary, §§21-26 generally Evidence E. McCormick on witnesses. See 1984) scope (3d. permissible of cross- (discussing views on ed. different witnesses); nonparty (discussing §§41-44 of defendants and examination nonparty may im and witnesses be subjects on which defendants different ways in (discussing §§ different which defendants peached); rights their while testi invoke self-incrimination nonparty witnesses (character 404(a)(1) evidence of the ac Fed. Evid. fying); compare Rule witness). 404(a)(3) (character cused) of a evidence with Fed. Rule Evid. equated attorney-client Geders, we never contact which constitutionally we held mandated with the evasion of truth. to our Central Sixth Amendment doctrine is the under- representation standing legal every for the defendant at adversary process stage enhances the discov- critical ery put it better enables the defendant to of truth because today’s majority proof. As the author of to its the State opinion earlier this Term: wrote for the Court importance vigorous representation paramount
“The system jus- the nature of our adversarial followsfrom system premised princi- on the well-tested tice. This ple that truth —as well as fairness—is ‘best discovered by powerful question.’ statements on both sides of the unlikely representation, however, it is Absent that a adequately will be able criminal defendant to test the government’s as case, for, Justice Sutherland wrote (1932), ‘[e]ven Alabama, Powell v. U. S. layman intelligent has and educated small sometimes Id., of law.’ at 69.” Penson v. no skill the science (citations omitted). ante, Ohio, *17 suggested that the Amendment Nowhere have we Sixth attorney right to counsel turns on what the defendant and his point during or at what a trial their discussion takes discuss generally Washington, place. 466 See Strickland v. U. S. 668, Cronic, S., 684-686 United States v. 466 U. County Dodson, v. 454 653-657; Polk U. S.
(1981); Herring York, New 422 853, 857-858, v. U. S. (1975). understanding in mind,
With this of the role of counsel persuasively argued discovery that will cannot be the of truth impeded “regain[s]... strategy” a if a defendant sense of be Ante, so, at 282. If that were a bar a trial recess. overnight during a 17-hour recess should be sus- order issued logical argument were taken to its ex- Indeed, if the tained. any attorney-defendant even before treme, contact, a bar on Surely prosecutor justifiable. would have trial, would be greater success ibid., in a tes- holes,” defendant’s “punching] timony Indeed, under the prosecutor such circumstances. not had “an would then be the defendant has assured that . the . . that un- poise opportunity regain regroup In words, Ibid. possess.” [does] aided witness the likely to face punch-drunk be more the would prosecutor to the search for thinks contributes majority who the witness truth.5 the deleterious effects of fears about majority’s
The trial recesses are vastly contact attorney-defendant is certainly cross-examination indis- Vigorous overstated. the of testimony, trustworthiness but discerning pensable a few words from soothing that I would think nervous defendant the awesome facing power or agitated increase the likelihood that might the defendant the State The value of coun- the truth on cross-examination. will state especially appar- a defendant would seem calming sel in such who the describes Perry, ent in this case that given was on trial for life.6 retarded,” ante, as at' “mildly assumption on an “res[t] that its does not majority claims decision ” Ante, coaching. at 281. None engage will unethical that trial counsel majority’s fears theless, believe I am inclined to motivated, part, by are at least strategy” will ... a “regain sense attorneys “respect suspicion will fail differ underlying that defense improper influence.” Geders assistance ence between adversary system “If our is to func n. 3 attorney however, design,” “we must assume that an will according tion system, as well as to his client.” responsibilities legal to the observe his Allen, Id., concurring); see also United States (Marshall, J., at (“[A]ll seriously obligation 2d, very lawyers take their as but few F. justice. proper role the administration court and their officers of the e., i. probability improper counseling, to lie or evade or We think cases”). truth, negligible in most distort *18 regarding Perry’s trial, psychologist psychiatrist and a testified At Perry, years old, They stated that then mental health. personality and school, learning difficulties in Q. had encountered had I. had an They personality. grade, had childlike also dropped the ninth out difficulty reality fantasy Perry distinguishing had from often testified that to remind a defendant Furthermore, certain cross- might implicate questions right against his examination self- previously to incrimination or relate excluded evidence, or to mind his demeanor at all caution a defendant is times, “legal merely engine” steaming the defendant for the to brace way. quoting Wigmore, n. J. Evidence Ante, (J. 1974). § accept I rev. Chadbourn cannot the view necessarily that discussions of this sort threaten the trial’s truth-seeking they might function. To the extent that in important circumstances, some it is to remember that truth princi- would in not be sacrificed the name of some obscure ple hangs constitutional command in the balance. See —a Geders, S., at 91. U.
Although majority appears attorney- to believe that any.subject defendant recess discussions on are inconsistent discovery with truth,” “the ante, it finds discussions regarding testimony particularly pernicious. to be This dis support tinction in finds no our Sixth Amendment cases. , majority’s logic point But even on this would did majority distinguishes “long” remain inscrutable. The re cesses, such as the 17-hourrecess at issue Geders, from the ground “short” 15-minute recess this case on the that it is “appropriate presume,” alternatively, or, that there “a “hysterical reaction,” inability and that he suffered from cope an 1048-1049, 1053-1054, 1087, stressful situations. Tr. 1091-1098. only can that the judge Perry One assume treatment the trial accorded during the 15-minute recess fright trepidation. exacerbated his sense of or recess, After sponte the trial sua ordered Perry’s counsel at- tempted Perry confer with order to questions “answer his and also to rights make sure he understood his cross-examination.” 7. The order, however, prevented bar recess, him from doing During so. Perry was placed very “taken out of the courtroom and in a small room chair, person, just with no window and no other one enclosed about a six room, by six with no one to talk to.” Tr. of Arg. Apparently, Oral 8. Perry’s explain Perry why they counsel was not even allowed to were permitted during the to confer recess. Treatment of this sort Perry’s ability well have effect on composure had adverse to retain his testify truthfully on cross-examination. *19 certainty,” virtual any ante, 283, 284, at discussion dur- ing a exclusively 15-minute recess will focus on the defend- upcoming testimony. again, majority ant’s Once reasons empirical legal authority assertion; offers no or to but- proposition. might tress this While this assertion have some validity respect nonparty might witnesses, who have parties’ attorneys, Geders, little else to discuss with see supra, argue attorney- it defies common sense regarding availability conversations “the defendant of other possibility negotiating witnesses, tactics, or even the of plea bargain,” place ante, 284, cannot, a during or not, do take
relatively brief recesses. example, during For while a defendant is on the stand di- examination, he rect remember name or address of physical witness, or the location of evidence, which would be helpful convey to his defense. It would take mere seconds to this information to counsel. As a matter of sound trial strat- egy, might defense counsel believe that this or new witness presented directly impact have if evidence would the most testimony. after the defendant concluded his But under the majority’s approach, defense counsel would even learn steps about this witness or until the evidence down Alternatively, might from stand. the defendant be so discouraged by on direct examination as to con- attempt plea negotiations pros- clude that he should with the immediately, accept plea outstanding bargain ecution or an only convey It him offer. need take seconds for this to his lawyer, particularly they previously had discussed the ad- visability pleading guilty. opportunity might This be for- prosecution lost, however, if ever a bar order issues and the just conducts a successful cross-examination. These are examples exchanges few tactical which defendants and attorneys might there midtrial; their have is no reason to be- exchanges predominantly overnight such occur lieve than Indeed, rather brief recesses recesses. over- “may night deprivation recess entail a of little more than the many fifteen attorneys minutes stake here because will de- vote the vast prepara- such an extended break to day tion sending for the next trial, while the client home to *20 sleep, jail.” (Winter, or back to 2d, 832 F. at 849 J.,C. dissenting).7 perverse aspect opinion majority’s
Yet another
of the
is its
recognition
right”
that a defendant has a “constitutional
to
go beyond
discuss
“matters that
those
content
the de-
testimony.”
Having recog-
Ante,
fendant’s own
at 284.
right,
expect
majority
require
one
nized this
would
judges
permit attorney-defendant
during
trial
contact
all
long
testimony
matter
recesses,
brief,
no
how
so
as trial
majority merely suggests
Instead,
discussed.
in a
judges
permit
“may
trial
footnote that
consultation between
counsel and defendant
such a recess, but forbid dis-
testimony.”
ongoing
(emphasis
cussion of
added).
Ante,
n. 8
attorney-client
regarding
If
discussions
matters
they surely
have
stature,
than
constitutional
protection
majority
today.
deserve
than the
more
offers
It
Perry
well be that
and his counsel would have discussed
beyond
[Perry’s]
[went]
“matters that
the content of
own
testimony,”
Perry
ante,
however,
at 284;
was,
denied this
right.
allowing
judges
In
constitutional
trial
ban all
brief
including
consultations,
recess
even those
or limited to dis-
regarding
majority
matters,
cussions
nontestimonial
needlessly
grapeshot where,
fires
even
own
under its
reason-
ing,
single
bullet would have sufficed.8
further
Judge
Chief
Winter
observed:
categories
adversary system
“Few
of constitutional
so
error
undermine the
any proof
prejudice
particular
as to
without
warrant
reversal
in a
case.
Denial
stage
pro-
of the assistance
a critical
of criminal
ceedings
category
deprivation
is one such
of error. Whether the
of coun-
thereof,
spans
trial
suspect
sel
an entire
or but a
any
fraction
renders
2d,
result
that is
832 F.
845.
obtained.”
possible
majority
distinguish
8The
assumes that
it is
discussions
testimony.
regarding
strategy
regarding
from
I
discussions
am not
Assume,
example,
for
so sure.
that counsel’s direct examination of the
II
Today’s
regrettable
respects.
decision is
in two further
In
practical
terms,
guess
leaves the trial
“to
at whether she has committed a constitutional violation”
when
Lane,
she issues a recess bar order.
Sanders
861 F.
“appropriate
presume”
2d,
Is it
at 1037.
that a 30-minute
involve a discussion of
recess will
nontestimonial matters?
a lunch break? Does it
How about
matter
defense coun-
only
promised
to discuss
sel has
nontestimonial matters with
majority’s
encompass
Does the
rationale
recesses
client?
testimony,
just
during the defendant’s direct or redirect
or
examination
those after the direct
has concluded? These are
inquiries, but the
arisen,
not abstract
sort that have
and will
arise,
continue to
on routine basis.
id.,
See
*21
cases). By
(collecting
providing practical
not even
a
frame-
questions,
to answer
work which
these
en-
adjoining
defendants,
sures that
even those in
courtrooms,
subject
practices.
inconsistency
will be
inconsistent
Such
is untenable when a critical constitutional
is at stake.
majority’s
approach guarantees
The
standardless
a new
litigation during
appellate
bout of
which lower courts ineluc-
tably
conflicting
point
will issue
decisions as to the
at which a
constitutionally imper-
recess bar order
“short”
becomes a
“long”
missible
recess bar order. Given that “clarification is
inadvertently
damaging
elicits
information that can be effec-
tively
only
opportunity
neutralized on redirect
if the defendant has the
called,
explain
to counsel.
If
his direct
a recess were
the ensu-
ing attorney-defendant
discussion would seem to be as much about trial
strategy
upcoming testimony.
speak
as about
Without a chance to
defendant,
hampered
counsel will be
in knowing whether
redirect
is
majority’s
spell
The
failure to
even advisable.
out the difference —if there
is one —between testimonial and nontestimonial
well
discussions
“have
attorneys,
chilling
might
on cautious
who
giving
effect
avoid
advice on
violating
matters for fear of
barring
[a
non-testimonial
court order
recess
Mudd v.
United
discussions of testimonial
matters].”
255 U. S.
1509,
App. D. C.
798 F. 2d
(1982),
feasible,” United States v. Ross,
indisputably
majority’s
desirable in
law,
this area of
willingness
ambiguity
dismaying.
to tolerate such
See
(CA4 1976).
Allen,
Finally, today’s com- marks a this Court’s decision for criminal defendants. fundamental fairness mitment to judge’s imposi- majority wholly ignores the trial uneven order issued when recesses were tion of bar orders. No bar testimony by witnesses, but when a called State’s Perry’s conclusion direct testi- recess was called at the suddenly mony, judge became that wit- the trial concerned helped approaching. might . . nesses be “cured or assisted or Perry’s App. objected 4-5. cross examination.” unfairly Perry being singled the trial out, was but compelled responded to act as he did to ensure, that he felt peculiar things, to the state.” 5. This all “fairness Perry obligation meant that was removed from the sense of the duration of the and held incommunicado for courtroom recess.9 process underpinning say, due concerns
Needless designed Amendment to counsel are ensure the Sixth generally not the See defendant, fair trial for the State. Washington, 466 S., 684-685; U. Strickland *22 against Perry, judge the trial or In to the bar order issued addition speak anyone during Perry’s wife not to recess called after dered completed her direct on behalf of her husband. Defense she had not done the state’s case. It protested that “this was being without only the defendant’s case and it is done even being done on again urge appears .... And I the Court that it request of the state part of the Tr. 904. The trial some bias on the Court.” to show apologize charge “I for it. I’m in of this trial objection: don’t rebuffed the Ibid, (emphasis it remains to all parties.” going to see that and I’m fair added). States v. Cronic, S., 653-656; 466 U. United States v. (1981). By ensuring Morrison, U. S. a defend- ant’s counsel, have which includes the concomitant every stage to communicate with counsel at critical proceedings, Alabama, see Powell v. 287 U. S. (1932), the Constitution seeks “to minimize the imbalance adversary system.” v. Ash, States 300, 309, twice disserves this noble goal by isolating the defendant at time when counsel’sas- — perhaps by ignoring sistance is needed, most the stark prosecution according very pre- unfairness witnesses the rogatives denied the defendant. The Constitution does not permit new this restriction the Sixth Amendment I counsel. dissent.