CREATORS
February 24, 2026
The U.S.
Supreme Court is expected to render a decision soon in a Texas case that has
implications for lawyers representing clients who testify on their own behalf
at criminal trials.
David Asa
Villarreal was charged with murder in Texas. During his trial, Villarreal took
the stand in his own defense. In the middle of being questioned by his
attorneys, the court adjourned for the evening. The trial judge instructed
Villarreal's attorneys not to confer with him during the overnight break.
The judge
told counsel, "I'm going to ask that both of you pretend that Mr.
Villarreal is on the stand. You couldn't confer with him during that
time." Villarreal's lead counsel objected under the Sixth Amendment to
this limitation.
The next
day, Villarreal resumed his testimony, and no further objections about the
limitation were raised. Villarreal was ultimately convicted and sentenced to
sixty years in prison.
Villarreal
appealed and his case wound its way to the U.S. Supreme Court. The high court
got involved due to disagreement among state and federal courts on the issue of
communication with a testifying client during a recess in testimony.
On one
side of the conflict, according to Villarreal's attorneys, "several state
supreme courts have held that while the trial court may not prohibit all
communications between a testifying defendant and his attorney during an
overnight recess, it may prohibit communications specifically about the
defendant's ongoing testimony." On the other side, "several federal
circuit courts of appeal have held any restriction on communication with
counsel during an overnight recess is impermissible."
Villarreal
argued to the Supreme Court that the judge's ban on his ability to discuss his
testimony with counsel violated his Sixth Amendment right to effective
assistance of counsel.
Attorney-client
conversations about testimony are necessary. For instance, counsel may need to
advise a client to avoid unwitting perjury; the necessity to recant testimony
or corrections in the defendant's testimony that counsel knows is inaccurate.
Additionally,
Villarreal asserted that lawyers could use overnight recesses for purposes not
directly related to testimony. For example, Villarreal argues that attorneys
might need to remind their clients to make a good impression on jurors, such as
a change in wardrobe, make eye contact with jurors or sit up straight.
Villarreal
argues that decisions in 1976 and 1989 support his position. The 1976 case
found that overnight recesses are important times for the defense team to
regroup, evaluate the day's events, and make decisions about future
proceedings. The 1989 decision held that an order not to talk with a client
during a fifteen-minute daytime recess did not violate the Sixth Amendment.
The length
of the recess triggers the Sixth Amendment protections. Villarreal argues that
a short recess would not infringe on a defendant's right to assistance of
counsel, but an overnight bar on talking with a client would violate those
constitutional protections.
A criminal
trial can be thoroughly unsettling for an accused. The language and cadence of
a criminal trial is foreign to even the most learned layperson. A trial recess,
even in the midst of a defendant's testimony, is essential to providing
emotional support, clarifying legal issues and helping to maintain the
defendant's trust in a fair and impartial criminal justice system.
The
inability to act in the interest of a client undermines zealous and effective
representation focused on protecting the rights of an accused.
To that
end, Villarreal argued, "The Sixth Amendment text does not limit counsel's
assistance to particular topics or particular times of day." The state
cannot argue that the founders in 1791 meant for the word
"assistance" to mean "assistance except for discussions of
testimony," or "assistance but not overnight."
Matthew T.
Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His
book, "The Executioner's Toll," 2010, was released by McFarland
Publishing. You can reach him at www.mattmangino.com and follow him on Twitter
@MatthewTMangino
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