§ 28.07 Interference with the Right to Counsel

• Jurisdiction: North Carolina

§ 28.07 Interference with the Right to Counsel

The right to counsel includes the right "that there . . . be no restrictions upon the function of counsel in defending a criminal prosecution in accord with the traditions of the adversary [system] . . . that has been constitutionalized in the Sixth and Fourteenth Amendments."¹⁶² This means, among other things, that the government may not ordinarily: (1) restrict defense counsel's decision on whether, and when in the course of the presentation of the defendant's case, the accused will testify;¹⁶³ (2) prevent counsel from eliciting testimony from his client through direct examination;¹⁶⁴or (3) deny counsel the opportunity to make a summation to the jury.¹⁶⁵

The Constitution is also violated if a trial judge prohibits a defendant from consulting with his attorney during an overnight recess, even if the recess is called while the defendant is on the witness stand and is about to be cross-examined by the prosecutor.¹⁶⁶ However, the Supreme Court explained in Perry v. Leeke¹⁶⁷ that because "cross-examination often depends for its effectiveness on the ability of counsel to punch holes in a witness' testimony at just the right time, in just the right way," a judge may prohibit consultation between the defendant and his counsel during a brief same-day recess, while the accused is testifying, in order to further the truth-seeking function of the trial.

Direct interference by the government with the defendant's right to the assistance of counsel ordinarily requires automatic reversal of any resulting conviction.¹⁶⁸

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Notes:

^[162] Herring v. New York, 422 U.S. 853, 857 (1975).

^[163] Brooks v. Tennessee, 406 U.S. 605 (1972) (applying the Fifth Amendment self-incrimination and due process clauses).

^[164] Ferguson v. Georgia, 365 U.S. 570 (1961).

^[165] Herring, 422 U.S. 853.

^[166] Geders v. United States, 425 U.S. 80 (1976).

^[167] 488 U.S. 272, 282 (1989).