Petitioner David Villarreal testified in his own defense at his Texas murder trial, claiming that he stabbed the victim in self-defense. His direct testimony was interrupted by a 24-hour overnight recess. Before the recess, the trial judge told Villarreal’s attorneys that they could speak with him but could not “manage” his ongoing testimony. The judge expressly recognized that Villarreal remained free to consult counsel about other subjects, including sentencing.
Villarreal was convicted of murder and argued on appeal that restricting discussion with counsel during the overnight recess violated his Sixth Amendment right to counsel. The Texas Court of Criminal Appeals upheld the order, concluding that it prohibited only discussion designed to shape Villarreal’s ongoing testimony.
The Supreme Court affirmed. Writing for the majority, Justice Jackson explained that the distinction between Geders v. United States, which prohibited a complete overnight ban on attorney-client consultation, and Perry v. Leeke, which permitted restrictions during a brief mid-testimony recess, is substantive rather than merely temporal. A defendant who takes the witness stand remains a criminal defendant entitled to counsel but also assumes the burdens of a witness. During an interruption in ongoing testimony, the Sixth Amendment does not protect consultation about the testimony “for its own sake”—such as practicing, revising, or reshaping testimony based on what the defendant has already said.
The restriction cannot extend to other protected attorney-client consultation, however, and a defendant may still discuss trial strategy with their attorney, other witnesses or evidence, evidentiary rulings, plea negotiations, sentencing, and other matters, even when those discussions incidentally involve the testimony already given.
Justice Alito concurred, emphasizing that counsel cannot disguise testimony coaching as discussion of protected topics.
Justice Thomas, joined by Justice Gorsuch, concurred in the judgment, concluding that Geders and Perry already resolved the case and criticizing the majority’s recognition of protected incidental discussion of testimony.
Certiorari to the Texas Court of Criminal Appeals
Opinion by Jackson, joined by Roberts, Alito, Sotomayor, Kagan, Kavanaugh, and Barrett
Concurring opinion by Alito
Opinion concurring in the judgment by Thomas, joined by Gorsuch
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