During a criminal trial — let’s call it State v. Marx — the judge announces a two-hour recess for lunch, reminding defendant Mr. Marx that he is in the midst of his testimony. During lunch, Marx’s defense attorney, Mr. B. Rosenbug, a/k/a “The Bug,” says to his client:
“You are really doing well. Keep it up. There is only one part of your testimony that I’m a little concerned about. Do you remember when you testified that the street light was out?”
“Yes?”
“Well the light was not out at the time of the incident. On redirect I will cover that with you, and you can clarify your prior testimony. Got it?”
“Got it,” says Marx.
At 2:00 p.m. sharp court resumes, and the judge instructs Mr. Marx to return to the stand, reminding him that he is still under oath.
The prosecutor asks: “Mr. Marx, during the lunch hour did you discuss your testimony with anyone?”
“Yes. I spoke to my lawyer,” says Marx.
The prosecutor asks: “Your Honor, may we approach the Bench?”
The judge grants the request, and at the side bar conference, the prosecutor says: “This is outrageous. Mr. Rosenbug knows that when a witness is in the middle of testimony he cannot discuss that testimony with his lawyer. I want to ask the defendant what he discussed with his lawyer.” Competing interests
Will the judge allow the question? There is no obvious answer; whether a party can consult with counsel during a recess while the party is in the midst of testifying is a complex question explored in case law that leaves room for judicial discretion.
In general, courts have a strong interest in safeguarding the integrity of testimony. Many are wary of giving counsel an opportunity to “coach” the accused, or exert improper influence on his or her testimony. To prevent such influence, courts often direct witnesses not to speak with counsel during the recess, or at least not to discuss matters of testimony.
In a criminal case, however, the court’s truth-seeking function can be at odds with the defendant’s Sixth Amendment right to counsel. In Geders v. U.S., 425 U.S. 80 (1976), the Supreme Court held that a trial court violated a criminal defendant’s Sixth Amendment right to assistance of counsel by ordering him not to consult with his attorney during an overnight recess called while the defendant was on the witness stand.
But subsequently in Perry v. Leeke, 488 U.S. 272 (1989), the Supreme Court held that a trial court could order “no consultation” during a 15-minute recess, as opposed to an overnight recess. The Court explained that the normal consultation between defendant and counsel during an overnight recess would encompass matters beyond the content of the defendant’s own testimony, such as the availability of other witnesses, trial tactics, or the possibility of negotiating a plea bargain. Thus, communication in such situations is acceptable.
By contrast, in a short recess during which it is appropriate to presume that nothing but the testimony would be discussed, the testifying defendant does not necessarily have a Sixth Amendment right to counsel, according to Perry. How short does a recess have to be to allow the judge to bar communication? There is no bright-line rule. Perry involved a 15-minute break, but a judge could plausibly prohibit communication during a two-hour recess, as well.
Thus, on appeal, an attorney alleging that a ban on communication during a 15-minute recess was a Sixth Amendment violation will likely fail to convince a court that the ban was a reversible error. The attorney may be more successful in alleging a violation of the right to counsel provision in the relevant state’s constitution. In view of Perry, a state constitutional argument may be the only way of obtaining relief in a case involving a brief recess.
Do not assume that communication between a defendant and his attorney will always be banned during a brief intermission. Geders and Perry permit courts a great deal of flexibility in exercising their sequestration power. For a short recess, the judge could: (a) forbid all communication with counsel; (b) permit communication with counsel but order them not to discuss the testimony; or (c) allow unrestricted communication between the two.
Far less discretion is allowed regarding an overnight recess in a criminal trial. In that instance, a judge should not forbid communication between the accused and his counsel. If any judge does so, defense counsel should immediately object and declare that he wishes to consult with his client. If the attorney fails to object, he or she may find an appellate court unsympathetic to later claims of unfair treatment. In Bailey v. Redman, 657 F.2d 21 (3rd Cir. 1981), the Court held that the trial court’s order forbidding the defendant to discuss his testimony with anyone during an overnight recess did not deprive him of the right to counsel because he failed to assert that he would have consulted with his attorney during an overnight recess absent the judge’s instruction.
The controlling law in civil cases is less clear than in the realm of the criminal case, but not dissimilar when the cases are analyzed. (See Reynolds v. Alabama Dept. of Transportation, 4 F.Supp.2d 1055 (M.D. Ala. 1998) and Potashnick v. Port City Construction Co., 609 F.2d 1101 5th Cir. (1980).) No green light
In the case of Mr. Marx, it is notable that the judge did not order counsel to refrain from speaking to the witness during the recess. Does this mean Rosenbug had the green light to confer with Marx?
No. To speak during a recess with a defendant who is in the midst of testimony without a judge’s permission may land the lawyer in hot water. In response to the outraged prosecutor, the court chides defense counsel thusly:
“Mr. Rosenbug, you should not have discussed your client’s testimony with him. Nevertheless, I do not want to risk penalizing the witness for your conduct and am not going to permit the prosecutor to ask your client what was discussed. I am disappointed that you did not consult with me before the recess so that we could have discussed this matter. This court will not tolerate such conduct again. I expect you to know the law and adhere to it. Do I make myself clear?”
“Yes, Your Honor,” says the repentant Rosenbug.