Villarreal v. Texas - Annotated Opinion

 David Villarreal’s murder trial culminated with his own testimony. The only defense witness, Villarreal testified that he stabbed the victim in self-defense while the victim was trying to choke him to death.

 A 24-hour overnight recess interrupted Villarreal’s direct testimony. Before the recess, the trial judge gave Villarreal the instruction that has become the centerpiece of this appeal. Apparently concerned that Villarreal’s counsel might coach Villarreal to adjust the remainder of his testimony, the judge sought to narrow Villarreal’s ability to confer with his attorneys overnight.

 The judge and Villarreal’s counsel engaged in an extended back-and-forth over the scope of the order. In the end, the trial judge left Villarreal’s attorneys with this directive: “[A]sk yourselves before you talk to [Villarreal] about something, is this something that—manage[s] his testimony in front of the jury?” 707 S. W. 3d 138, 142 (Tex. Crim. App. 2024). Addressing Villarreal, the judge clarified: “I’m not telling you, you can’t talk to them.” Ibid. Indeed, the judge recognized that Villarreal had “a constitutional right to confer” with his attorneys about certain topics. Ibid. “For instance, suppose . . . you need to start talking . . . about possible sentencing issues, you can do that.” Ibid. But to the extent Villarreal’s lawyers wished to “manage” his testimony, the judge placed that off limits. Ibid.

 Villarreal’s lawyers objected under the Sixth Amendment but indicated that they understood the order’s scope. Id., at 142–143. Villarreal resumed his testimony 24 hours later and was subsequently convicted of murder; he received a 60-year sentence. Id., at 140, 143. At no point did Villarreal or his attorneys suggest that the qualified conferral order had inhibited any conversation they wished to have. See id., at 143.

 The Court of Appeals of Texas affirmed Villarreal’s conviction, see 596 S. W. 3d 338 (2019), as did the Texas Court of Criminal Appeals (TCCA), see 707 S. W. 3d 138. The TCCA understood the challenged conferral order as an effort to “preserv[e] the truth-seeking function of trial” and thus construed the order as prohibiting Villarreal’s lawyers from “managing” his “ongoing testimony.” Id., at 146. In the TCCA’s view, the order was a permissible exercise of the trial court’s discretion because it “only restricted discussions of [Villarreal’s] ongoing testimony and nothing else.” Ibid. Although a defendant must be able to confer with counsel about the “effects” of his testimony, the TCCA reasoned, a trial court may prohibit more explicit discussion of the defendant’s testimony itself. Id., at 145. The TCCA explained that a trial court may, for example, order defense counsel not to “coach the testimony to course-correct a disastrous direct examination to brace against the impact of the upcoming cross-examination.” Ibid.

 In separate writings, multiple TCCA judges expressed hesitation with the “murky” line that emerges from Geders and Perry. See 707 S. W. 3d, at 147–148 (Yeary, J., concurring). They worried that confusion about the proper scope of conferral orders risks trenching on a defendant’s Sixth Amendment right to obtain full, unqualified advice on matters key to the effective assistance of counsel, such as whether to plead guilty. See id., at 148 (same); id., at 150 (Keel, J., concurring).

 Those judges are among many who have struggled with the permissibility of similar orders and who have diverged both in their bottom-line conclusions and in their reasoning.² We granted certiorari to clarify the Sixth Amendment’s boundaries. 604 U. S. 1241 (2025).

 The Sixth Amendment guarantees as “fundamental” a criminal defendant’s right to consult with his counsel. See, e.g., Powell v. Alabama, 287 U. S. 45, 68 (1932). When a defendant opts to take the witness stand, however, he “[a]ssum[es] the position of a witness,” with its attendant “criticisms and burdens.” Reagan v. United States, 157 U. S. 301, 305 (1895). One such burden: Courts may limit advice from counsel aimed at “influenc[ing] the testimony in light of the testimony already given.” Geders, 425 U. S., at 87.

 During a normal trial recess—one that does not interrupt the defendant’s testimony—no such influence is threatened and the Constitution plainly protects a defendant’s right to access his counsel without judicial interference. But during a midtestimony recess (when the defendant not only enjoys the Sixth Amendment’s protection but also bears a witness’s burdens), it is less clear whether and to what extent the Sixth Amendment permits judge-imposed restrictions on the defendant’s access to counsel.

 This Court first encountered that question in Geders. An overnight recess divided Geders’s direct testimony from his cross-examination. Before the recess, the judge ordered Geders not to discuss the case overnight with anyone. 425 U. S., at 82–83, and n. 1. Geders’s attorney objected to this absolute conferral ban, explaining that he believed his client had a right to confer with him “about matters other than the imminent cross-examination.” Id., at 82.

 This Court agreed. The trial judge’s order, we explained, was a species of the traditional practice of witness sequestration. “Applied to nonparty witnesses,” the practice is unobjectionable and “within sound judicial discretion.” Id., at 88. But Geders “was not simply a witness; he was also the defendant.” Ibid. And whereas “[a] nonparty witness ordinarily has little, other than his own testimony, to discuss with trial counsel” during an overnight recess, the same is not true of a defendant: “It is common practice during such recesses for an accused and counsel to discuss the events of the day’s trial.” Ibid. Indeed, we explained,

“[s]uch recesses are often times of intensive work, with tactical decisions to be made and strategies to be reviewed. The lawyer may need to obtain from his client information made relevant by the day’s testimony, or he may need to pursue inquiry along lines not fully explored earlier. At the very least, the overnight recess during trial gives the defendant a chance to discuss with counsel the significance of the day’s events.” Ibid.

 For those reasons, we held in Geders that the Sixth Amendment precludes the judge from keeping a defendant and his lawyer apart during that crucial interlude in the defendant’s testimony. We observed that concerns about “the problem of possible improper influence on testimony or ‘coaching’ of a witness” can be addressed without so blunt an instrument as a complete overnight barrier. Id., at 89. And, “[t]o the extent that conflict remains” between the Constitution and the interest in untutored cross- examination, we concluded that “the conflict must, under the Sixth Amendment, be resolved in favor of the right to the assistance and guidance of counsel.” Id., at 91.

 Geders explicitly reserved judgment regarding the constitutionality of a shorter conferral restriction, like one governing “a brief routine recess during the trial day.” Id., at 89, n. 2. But when that question arose 13 years later in Perry, we upheld the restriction, emphasizing a defendant’s shift in status when he takes the stand. “[B]efore he begins to testify,” we reasoned, a defendant “has an absolute right” to consult with his lawyer. 488 U. S., at 281. When he becomes a witness, however, a competing duty arises: the duty to advance “the truth-seeking function of the trial.” Id., at 282. That function, we explained, is best served when testimony is unaided by “an opportunity to consult with third parties,” such as lawyers, about the course of one’s testimony once it has begun. Ibid.

 Then, Perry made a key observation: As a practical matter, a truth-undermining consultation is exactly the kind of communication likely to happen during a brief daytime recess. That is, during a brief recess, “there is a virtual certainty that any conversation between the witness and the lawyer would relate to the ongoing testimony.” Id., at 283–284. Notably, this fact differentiated the Perry recess from the Geders one. When (as in Geders) the recess stretches overnight, the discussion will likely “encompass matters that go beyond the content of the defendant’s own testimony—matters that the defendant does have a constitutional right to discuss with his lawyer, such as the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain.” Perry, 488 U. S., at 284.

 Perry therefore held that what the Sixth Amendment forbids overnight (a total conferral ban), it permits during a brief daytime recess. Perry also suggested that, during such a brief recess, trial courts might opt for a lesser included restriction—one that would permit consultation on protected topics “but forbid discussion of ongoing testimony.” Ibid., n. 8.

 We acknowledged in Perry that “the line between the facts of Geders and” Perry “is a thin one.” Id., at 280. It is nonetheless “a line of constitutional dimension.” Ibid.

 We do not share Justice Thomas’s view that today’s decision “needlessly expands our precedents.” Post, at 2 (opinion concurring in judgment). It is true that “Perry never stated” the rule we draw from it and Geders. Post, at 7. If it did, there would have been no need to take this case. But for the reasons explained above, today’s result follows neatly from our precedents.

 “[B]efore he begins to testify,” a defendant “has an absolute right” to confer with his lawyer. Perry, 488 U. S., at 281; accord, Geders, 425 U. S., at 88. Once he begins to testify, what was absolute becomes qualified, as “the testifying defendant does not have a constitutional right to advice” about his “ongoing testimony.” Perry, 488 U. S., at 284. But the testifying defendant “does have a constitutional right to discuss” “matters that go beyond the content of [his] own testimony,” even though “such discussions will inevitably include some consideration of the defendant’s ongoing testimony.” Ibid.; accord, Geders, 425 U. S., at 88, 91. We say no more than that today.

 I begin with a word about the origin and nature of the constitutional right that petitioner invokes, that is, the right to confer with his attorney during an overnight break in his testimony. Petitioner claims that the Sixth Amendment right to the assistance of counsel includes this right. When the Sixth Amendment was adopted, however, criminal defendants could not testify in their own defense because they were not considered competent witnesses. See Rock v. Arkansas, 483 U. S. 44, 49–50 (1987). It follows that a defendant could not consult with an attorney about such testimony. Most States did not allow defendants to take the stand until well into the 19th century, see Ferguson v. Georgia, 365 U. S. 570, 576–577, and nn. 5–6 (1961), and this Court did not squarely recognize a defendant’s constitutional right to testify in his own defense until its 1987 decision in Rock, 483 U. S., at 49. Even then, the Court did not  hold that the Sixth Amendment alone conferred this right. The Court pointed to several possible sources of the right but appeared to rely primarily on the Due Process Clause. See id., at 51. And the Court made clear that the constitutional right to testify was subject to limitations designed to protect the truth-seeking function of trial. Id., at 55–56, and n. 11. Limitations on midtestimonial attorney-client communications must therefore be analyzed against this backdrop.

 In considering the permissible scope of a defendant’s midtestimonial consultation, it is helpful to begin with the baseline situation in which a defendant completes both direct and cross-examination without any break in the proceedings. In that situation, the governing rules allow the jury to hear the defendant’s story in his own words from his own mouth, not a version of that story scripted or choreographed by counsel. A defendant may not, for instance, sign and present to the jury a carefully crafted affidavit of events written by counsel. Nor may the defense show the jury a video in which the defendant recites a prepared statement. And when the defendant is on the stand, defense counsel cannot pass him notes or speak to him via an earpiece.

 Instead, the defendant must take the stand and speak directly to the jury in his own words. During direct examination, defense counsel generally may not lead the witness. Fed. Rule Evid. 611(c). That is, counsel may not ask questions in a form that suggests the answer that the defendant should give. And during cross-examination, counsel’s participation is limited to objecting to any improper questions. Otherwise, the defendant is on his own.

 A break in the proceeding—either a short break during the trial day or an overnight recess—should not fundamentally alter the rule that the defendant must testify without coaching by counsel. That is why we have held that during  a brief break a trial judge may prohibit all communications between the defendant and counsel. Perry v. Leeke, 488 U. S. 272, 281 (1989). In that situation, we observed, there was a “virtual certainty” that any communication between the defendant and his attorney would “relate to the ongoing testimony.” Id., at 283–284. When a defendant decides to take the stand, his testimony is a critical stage of the trial. If the jury comes away with a low opinion of his character or simply disbelieves his testimony, the chances of conviction increase, and if the jury forms a favorable opinion of the defendant and believes his testimony, he has a greater chance of acquittal. Thus, during this critical phase, counsel will almost certainly prioritize bolstering the defendant’s testimony over all other matters. And since a short break gives the defendant and counsel little time to converse, they will likely discuss only the most urgent topic at hand. With much at stake and limited time for consultation, it is almost certain that any discussion will concern the remainder of the client’s make-or-break testimony, not other matters that can be discussed after the testimony ends.

 A trial judge could deal with this situation by allowing the defendant and counsel to confer but instructing them not to talk about the defendant’s testimony. But the judge would have little ability to determine whether the defendant and counsel obeyed this instruction. The judge could not sit in on their conversation or later ask them what they said. Instead, the judge would have to rely heavily on the attorney’s good faith. Although we may presume that most defense attorneys would try to follow the judge’s instructions, our decision in Perry—holding that consultation during a short midtestimonial break may be completely barred—eliminates the danger of noncompliance.

 When a defendant’s testimony cannot be completed by the end of a trial day, the situation is somewhat different. Some things remain the same: Because of its centrality, the defendant’s testimony is very likely still the top priority. Accordingly, counsel’s incentive to improve that testimony will remain strong. But because they will have more time, the likelihood that the attorney and client will also seek to discuss matters unrelated to the defendant’s testimony will be greater. And particularly if the defendant’s testimony is anticipated to finish before the end of the next trial day, the attorney and client might need to discuss other defense witnesses who will follow the defendant on the stand, as well as any rebuttal witnesses the prosecution might call.

 In light of these different circumstances, the Court struck a different balance in Geders v. United States, 425 U. S. 80 (1976), and held that a trial judge may not prohibit all attorney-client consultation during an overnight break. But that decision did not alter the baseline rule that, if a defendant elects to take the stand, the jury is entitled to hear the defendant’s own story in his own words, not a version crafted or edited by counsel. Thus, during an overnight break, a defendant may consult his attorney about matters other than the defendant’s testimony, but any efforts to shape what the defendant will say when he resumes testifying are improper. And attempts to achieve that end indirectly are just as improper as attempts to do so directly.

 For example, consider what defense counsel could and could not properly say during an overnight break concerning the tactical decision whether to seek a plea deal. Counsel could say, “Let’s discuss what plea terms you would be willing to agree to,” or, “We should seek a deal because there is a strong chance the jury will find you guilty.” But counsel could not say: “We will really need to secure a deal unless you clean up mistakes A, B, and C that you made today on the stand.” Nor could counsel say: “We will really  need to secure some sort of deal unless, when you return to the stand tomorrow, you stop scowling, looking down, and making nervous gestures with your fingers.” Such efforts would constitute the sort of improper “coaching” that Geders does not allow. They would not be “incidental.” Ante, at 9, 12, and n. 5, 13.

 At bottom, a defendant and his counsel may not engage in midtestimonial discussions that affect the truth-seeking function of trial by improving or shaping the defendant’s ongoing testimony. I join the majority opinion with the understanding that it draws this line.

 Petitioner David Villarreal was charged with murder and tried in Texas state court. Villarreal took the stand to testify in his own defense. While Villarreal was still on direct examination, the judge had to recess trial for the day due to a scheduling conflict. Ordinarily, a witness cannot consult with counsel during his testimony. See Perry, 488 U. S., at 281–282, and nn. 4–5; Geders, 425 U. S., at 87. The trial judge therefore instructed Villarreal’s counsel not to discuss Villarreal’s testimony overnight. But his order allowed Villarreal to confer with counsel about matters other than his ongoing testimony:

“THE COURT: Normally your lawyer couldn’t come up and confer with you about your testimony in the middle of the trial and in the middle of having the jury hear your testimony. And so I’d like to tell you that you can’t confer with your attorney but [at] the same time you have a Sixth Amendment right to talk to your attorney.

“So I’m really going to put the burden on [counsel] to tell you the truth. . . . I’m going to ask that [counsel] pretend that Mr. Villarreal is on the stand. You couldn’t confer with him during that time.

.     .     .     .     .

“But I believe if you need to talk to your attorneys, I’m not telling you, you can’t talk to them. But I’m going to rely on [counsel] to use your best judgment in talking to [Villarreal] because you can’t—you couldn’t confer with him while he was on the stand about his testimony. . . .

 “DEFENSE COUNSEL #1: All right. So just so I am clear and don’t violate any court orders, that—because he is still on direct and still testifying, that it is your ruling that we cannot confer with our client?

“THE COURT: Let me help you with that. For instance, suppose we go into a sentencing hearing and you need to start talking to him about possible sentencing issues, you can do that. Does that make sense? I don’t want you discussing what you couldn’t discuss with him if he was on the stand in front of the [j]ury.

“DEFENSE COUNSEL #1: Okay.

“THE COURT: His testimony. I’m not sure whatever else you’d like to talk with him about while he’s on the stand. But ask yourselves before you talk to him about something, is this something that—manage[s] his testimony in front of the jury? Does that make sense to you?

“DEFENSE COUNSEL #1: Sure, it does.

“DEFENSE COUNSEL #2: We aren’t going to talk to him about the facts that he testified about.

“THE COURT: All right. Fair enough. But at the same time—I’m going to put the burden on the lawyers, not on him, because he has a constitutional right to confer with you. At the same time, all lawyers are under—they’re under different rules than the defendants are.

.     .     .     .     .

“And you’re going to have to decide, if he asks you any questions and such, is this something that is going to be considered to be conferring with him on the witness stand while the jury is there or not.” 707 S. W. 3d 138, 141–142 (Tex. Crim. App. 2024) (some alterations and boldface omitted).

 Villarreal’s counsel objected to the judge’s order, but the judge overruled that objection. Id., at 142–143.

 Villarreal resumed testifying the next day. Neither he nor his counsel reported that the trial judge’s order impeded any discussions. The record does not reflect that they planned to discuss any matter even arguably covered by the judge’s order. The jury later found Villarreal guilty of murder.

 On appeal, Villarreal argued that the trial judge’s order, by preventing him from discussing his ongoing testimony with his counsel, violated his Sixth Amendment right to counsel. The Texas Court of Appeals affirmed because a trial court may “limit [a defendant’s] right to confer with his attorneys during an overnight recess to topics other than his ongoing testimony.” 596 S. W 3d 338, 343 (2019). The Texas Court of Criminal Appeals also affirmed on the ground that a defendant has no right to discuss “ongoing testimony.” 707 S. W. 3d, at 144–146.

 This Court granted certiorari. 604 U. S. 1241 (2025).

 The Sixth Amendment, made applicable to the States by the Fourteenth Amendment, guarantees to a criminal defendant the right to have “the Assistance of Counsel for his defence.” It was enacted in response to English laws that sometimes forced defendants to represent themselves at trial. See Garza v. Idaho, 586 U. S. 232, 259 (2019) (Thomas, J., dissenting). This Court has interpreted it to guarantee a defendant a right to discuss with counsel matters other than his ongoing testimony. The trial judge’s order here allowed Villarreal and his counsel to discuss matters other than Villarreal’s ongoing testimony overnight, so it did not violate his Sixth Amendment rights.

 I am unable to join the majority opinion because it unnecessarily expands these precedents. It purports to “announce” a “rule” under which a defendant has a constitutional right to “discussion of testimony” so long as that discussion is “incidental to other topics.” Ante, at 9, 11, 12, n. 5. It identifies new circumstances, not presented here, in which a defendant supposedly has a right to discuss matters related to his ongoing testimony. Ante, at 9–10, 12. And it endorses a methodology under which “any conflict between the Sixth Amendment and the desire for untutored testimony must ‘be resolved in favor of the right to the assistance and guidance of counsel.’ ” Ante, at 12.

 The majority opinion finds no support in Perry. As for a general right to discuss testimony, this Court in Perry explained in straightforward terms that “we do not believe the defendant has a constitutional right to discuss [his] testimony while it is in process.” 488 U. S., at 284; cf. ante, at 9–11. Perry therefore endorsed orders that categorically “forbid discussion of ongoing testimony.” 488 U. S., at 284, n. 8. That endorsement came in the context of a brief recess. Id., at 284. But, unlike the majority opinion in this case, see ante at 9, 12, Perry never stated that those sorts of categorial orders are forbidden overnight. As for the potential conflict between the possibility for conferral and uncompromised testimony, see ante, at 12, Perry clarified that the Court would not read Geders to demand resolving them in favor of conferral in all cases. “[W]hen [a defendant] assumes the role of a witness, the rules that generally apply to other witnesses—rules that serve the truth-seeking function of the trial—are generally applicable to him as well.” Perry, 488 U. S., at 282. Defendants, in other words, are generally “subject to” the same “criticisms and burdens” as other witnesses. Reagan, 157 U. S., at 305.

 The majority opinion does not claim that its approach finds any support in the original meaning of the Sixth  Amendment. The majority also does not claim that opining on matters not presented by the facts was necessary to decide this case, which involved an order that all agree was constitutional.

 I respectfully concur in the judgment.