In a unanimous judgment, the Supreme Court in Villarreal v. Texas (No. 24-557) affirmed the Texas Court of  Criminal Appeals’ holding that an order prohibiting a criminal defendant and his attorney from discussing the defendant’s testimony during a mid-testimony, overnight recess does not violate the defendant’s Sixth Amendment right to counsel.

As summarized in Dykema’s November 2025 edition, Petitioner David Villarreal’s murder trial culminated with his own testimony, which was interrupted by an overnight recess. The trial court instructed Villarreal that, while he could confer with counsel about other aspects of his case during the recess, he could not discuss his ongoing testimony. Villarreal was convicted and, on appeal, argued his Sixth Amendment rights were violated. Both the Texas Court of Appeals and the Texas Court of Criminal Appeals affirmed Petitioner’s conviction. The Supreme Court granted certiorari.

Authored by Justice Jackson, the Court affirmed the lower court’s decision that the Sixth Amendment right to counsel is not violated when a trial court prohibits a criminal defendant from discussing their testimony with counsel during an overnight recess. The Court clarified the “substantive” line between its prior decisions in Geders v. United States and Perry v. Leeke. Geders, decided in 1976, held that a court may not entirely prevent a testifying defendant from conferring with counsel overnight about matters other than the defendant’s own testimony because the parties have the right to discuss tactical decisions and trial strategies. But Perry, decided in 1989, held that a court may prevent a criminal defendant from conferring with counsel during a daytime recess because of the certainty that the conversations during the recess would relate to ongoing testimony—an activity which does not benefit from constitutional protection.

Villarreal presented a third scenario where an overnight recess occurs during a criminal defendant’s testimony. Relying on Reagan v. United States, the Court emphasized that when a defendant decides to take the witness stand, they assume the position of a witness. As such, they bear responsibility for the attendant “criticisms and burdens” of being on a witness stand—one of which is a limitation on counsel’s advice, which often influences testimony. The Court held that if a recess does not interrupt testimony, there is no threat of this undue influence. But during a mid-testimony recess, the Sixth Amendment does not allow a criminal defendant to discuss ongoing testimony with their lawyer.

Justice Alito concurred in the opinion, highlighting that at the time the Sixth Amendment was adopted, criminal defendants could not testify in their own defense (as common law viewed them as incompetent witnesses due to their interest in the outcome) and, as such, they could not consult with their attorney about their own testimony. Justice Thomas, joined by Justice Gorsuch, concurred only in the Court’s judgment, writing separately to highlight his concerns that the Court considered hypotheticals not before it and “needlessly” expanded precedent.

Takeaway

• Limitations on Attorney Consultations: Courts may prohibit discussions about ongoing testimony during a recess, which interrupts that testimony.

For more information, please contact Chantel Febus, James Azadian, Kyle Asher, Monika Harris, or David Ter-Petrosyan.