§ 19.07 Out-of-Court Separation of Attorney and Client

• Jurisdiction: United States

§ 19.07 Out-of-Court Separation of Attorney and Client

In Geders v. United States,³⁴ the Supreme Court held that an order precluding a defendant and his attorney from discussing evidence during an overnight recess violated the Sixth Amendment right to effective assistance of counsel. However, in Perry v. Leeke,³⁵the Court upheld an order prohibiting the accused from talking with anyone, including his defense counsel, during a short break between direct and cross-examination. In the Court's view, once the accused takes the stand, he is subject to cross-examination and "cross-examination is more likely to elicit truthful responses if it goes forward without allowing the witness an opportunity to consult with third parties, including his or her lawyer."³⁶

The Court distinguished Geders by pointing out that "an overnight recess would encompass matters that go beyond the content of the defendant's own testimony. It is the defendant's right to unrestricted access to his lawyer for advice on a variety of trial-related matters that is controlling in the context of a long recess."³⁷

A state, of course, may provide greater protection for an accused than that required by the federal constitution. For example, the Hawaii Supreme Court rejected the Geders-Perry distinction, finding that the "right to the assistance of counsel does not—and should not—turn on the length of time that a trial court chooses to recess or what the defendant and his attorney choose to discuss. To the contrary, a criminal defendant has a constitutional right to confer with counsel at all stages of his case, including recesses taken during his testimony."³⁸

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Notes:

^[34] 425 U.S. 80 (1976).

^[35] 488 U.S. 272, 282 (1989) (Permitting consultation between direct and cross-examination "grants the witness an opportunity to regroup and regain a poise and sense of strategy that the unaided witness would not possess.").

^[36] Id. at 282. The Court added: "[W]hen a defendant becomes a witness, he has no constitutional right to consult with his lawyer while he is testifying. He has an absolute right to such consultation before he begins to testify, but neither he nor his lawyer has a right to have the testimony interrupted in order to give him the benefit of...