5.39 - 4. Constitutional Issues

• Jurisdiction: New York

4. Constitutional Issues

Some cases suggest that a very strict approach to the matter of consultation might raise constitutional issues. In Geders v. United States,¹⁸³⁴ the U.S. Supreme Court held that an order that forbade a defendant in a criminal case from consulting his attorney about anything during an overnight recess of 17 hours between his direct examination and cross impinged upon his Sixth Amendment right to counsel.

The Court noted that judges have “broad power to sequester witnesses before, during, and after their testimony.”¹⁸³⁵ This ancient power, which is reputed to have arisen several thousand years ago during a trial for rape in which Solomon presided, was then and is now used to prevent witnesses from tailoring their testimony to fit the story presented by other witnesses. The practice of sequestering also helps to detect testimony that is not candid and to prevent improper efforts at influencing testimony.¹⁸³⁶ But, when the rights of the defendant in a criminal case are at stake, “the role of counsel [while witnesses are sequestered] is important precisely because ordinarily a defendant is ill-equipped to understand and deal with the trial process without a lawyer’s guidance.”¹⁸³⁷ It is therefore not proper for a court to forbid such guidance during all recesses, even about matters unconnected to the testimony.

In Perry v. Leeke,¹⁸³⁸ the Supreme Court further defined the issues. The Court held that judges are not constitutionally required to allow the defendant in a criminal case to consult with counsel during a short break called by the court while the defendant is testifying, as the defendant has no constitutional right to consult counsel while testifying. The trial judge can refuse to declare a recess at the close of direct testimony or at any other point during it and also has the power to “maintain the status quo” during a brief recess by prohibiting consultation.¹⁸³⁹ The Court contrasted long recesses, during which a consultation would normally encompass matters going beyond the content of the defendant’s testimony (e.g., trial tactics, etc.), with short recesses “in which it is appropriate to presume that nothing but the testimony will be discussed.”¹⁸⁴⁰

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Notes:

^[1834] . 425 U.S. 80 (1976); see also United States v. Triumph Capital Group, Inc., 487 F.3d 124 (2d Cir. 2007); People v. Umali, 10 N.Y.3d 417, 859 N.Y.S.2d 104 (2008), cert. denied, 129 S. Ct. 1595 (2009).

^[1835] . Geders, 425 U.S. at 87.

^[1836] . Id.

^[1837] . Id...