holding that 17-hour prohibition against conferring with counsel “about anything,” after defendant concluded direct examination and before cross-examination by State began, violated Sixth Amendment; further explaining that abuse-of-discretion standard applies, because trial court “must meet situations as they arise and to do this must have broad power to cope with the complexities and contingencies inherent in the adversary process”
How later courts described this case
- holding that 17-hour prohibition against conferring with counsel “about anything,” after defendant concluded direct examination and before cross-examination by State began, violated Sixth Amendment; further explaining that abuse-of-discretion standard applies, because trial court “must meet situations as they arise and to do this must have broad power to cope with the complexities and contingencies inherent in the adversary process”
- holding that a trial court order prohibiting criminal defendant from consulting with counsel during a 17-hour, overnight recess after defendant’s direct examination and before the cross-examination was reversible error, even though the prohibition was made because of concern about inappropriate “coaching” of the defendant
- stating that if the trial judge believes that there is a high risk that defense counsel will not, during a trial recess, observe the ethical limits on guiding the defendant as a witness, the judge “may arrange the sequence of testimony so that direct- and cross-examination . . . will be completed without interruption”
- holding that the trial court’s order preventing defendant from consulting his counsel about anything during a 17- hour overnight recess in the trial between his direct and cross-examination deprived defendant of his right to the assistance of counsel guaranteed by the Sixth Amendment
Written by the judges who cited it.
Distinguished
Distinguished by State v. Rhodes, 337 Wis. 2d 594 (2011)
Geders is inapplicable.
Distinguished by Bova v. State, 410 So. 2d 1343 (1982)
The state argues that Geders and Stripling are distinguishable in that the prohibition on consultation in those cases was substantial, an overnight and a two-hour recess.
Distinguished by John H. Bailey v. Walter Redman, Warden, Delaware Correctional Center, and Richard R. Wier, Attorney General of the State of Delaware, 657 F.2d 21 (1981)
The court below also held that Geders was inapplicable because the restriction on Bailey’s right to consult with counsel did not foreclose his right to discuss subjects other than his trial testimony.
Distinguished by Jackson v. United States, 1979 D.C. App. LEXIS 412 (1979)
Nonetheless, the government contends that Geders is distinguishable because the order in this case only prohibited defendant from discussing his testimony and did not, as in Geders prevent him from consulting his counsel “about anything.
The opinion
Mr. Justice Marshall,
with whom Mr. Justice Brennan joins, concurring.
I join in most of the Court's opinion, and I agree with its conclusion that an order preventing a defendant from consulting with his attorney during an overnight recess violates the defendant’s Sixth Amendment right to counsel.
The Court notes that this case does not involve an order barring communication between defendant and counsel during a “brief routine recess during the trial day.” 1 Ante, at 89 n. 2. That is, of course, true. I would add, however, that I do not understand the Court’s observation as suggesting that as a general rule no constitutional infirmity would inhere in an order barring communication between a defendant and his attorney during a “brief routine recess.” 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.
Thus, as the Court holds, a defendant who claims that an order prohibiting communication with his lawyer impinges upon his Sixth Amendment right to counsel need not make a preliminary showing of prejudice. Such an *93 order is inherently suspect, and requires initial justification by the Government.
The only justification expressly considered by the Court in its opinion is the desire to avoid the risk of unethical counseling by an attorney. 2 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. 3 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.
I would assume, however, that the Court’s repeated reference to the length of the overnight recess in this case — 17 hours — is not intended to have any dispositive significance, and that the Court’s holding is at least broad enough to cover all overnight recesses.
For the distinction between ethical and unethical counseling, see ante, at 90 n. 3.
The Court suggests, however, that “doubts that defense counsel will observe the ethical limits on guiding witnesses” would justify such actions as postponing the luncheon recess or extending the normal adjournment hour in order to complete the defendant’s testimony. Ante, at 90-91. I would assume that trial courts generally take such steps out of a desire to move the trial along in an orderly and expeditious fashion, not out of fear that defense counsel might exceed the bounds of ethical conduct if given the opportunity. And I am unwilling to endorse the notion that where the orderly and expeditious progress of the trial would not be served, the trial court should nevertheless feel free to continue the defendant’s testimony without interruption because of a belief that defense counsel is likely to act unethically.