Supreme Court Ruling Raises Risk for Clients Testifying at Trial

The US Supreme Court unanimously found in Villarreal v. Texas that a trial court can order a defendant and his counsel not to discuss ongoing testimony during an overnight recess—and it reaffirmed that the trial court can’t prohibit a defendant and their counsel from discussing other topics such as trial tactics or plea bargaining.

The justices reasoned that this strikes a balance between the Sixth Amendment right to counsel and the truth-seeking function of a trial. Criminal defense counsel should understand that trial courts will rely on Villarreal moving forward and advise their clients on the risks it creates when offering testimony that may take more than one day.

The case arose from the Texas state court murder trial of David Villarreal, whose testimony—as the only defense witness—was interrupted by a 24-hour overnight recess during his direct examination.

Before the recess, the trial judge instructed Villarreal’s attorneys not to “manage his testimony” during the break. The judge clarified, however, that Villarreal wasn’t prohibited from talking to his attorneys about other topics, such as possible sentencing issues.

Villarreal’s counsel objected under the Sixth Amendment but indicated they understood the order’s scope. Villarreal resumed his testimony 24 hours later, was convicted of murder, and received a 60-year sentence. Neither Villarreal nor his counsel suggested the order chilled any conversation between them.

The Texas Court of Criminal Appeals affirmed, concluding that 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. Villareal petitioned the Supreme Court, which issued its decision Feb. 25.

Justice Ketanji Brown Jackson, writing for the court, framed the case as a tension between two longstanding principles: a defendant’s right to the assistance and advice of counsel unrestricted by judicial interference and a defendant’s responsibility when they become a witness to offer sworn testimony that is free of any improper influence by the defendant’s attorney.

The Supreme Court previously addressed this tension in two prior decisions. In Geders v. United States, it held that a trial judge may not entirely prevent a testifying defendant from conferring with their lawyer during an overnight recess because the defendant has matters other than their own testimony to discuss, such as tactical decisions, strategies, and the significance of the day’s events.

In Perry v. Leeke, the court held that a judge may prevent a testifying defendant from conferring with their lawyer during a brief daytime recess because there is a virtual certainty that any conversation during such a recess would relate to the ongoing testimony.

The central question in Villarreal was whether the line between Geders and Perry is temporal (as Villarreal argued) or substantive (as Texas argued). In finding that the trial court didn’t err when it issued its qualified conferral order, the justices agreed with Texas that the distinction is substantive.

Consequently, the Sixth Amendment doesn’t protect discussion of testimony for its own sake—or “testimony qua testimony,” as the court described it—for the duration of the defendant’s time on the stand. The court made clear, however, that a defense attorney may rehearse a client’s testimony before the client takes the stand and debrief testimony after the client leaves the stand for good. But while the defendant is testifying, consultation about the testimony itself is unprotected.

Villarreal provides four clear takeaways for criminal defense practitioners and their clients.

First, the Supreme Court explained that trial courts have discretion to impose qualified conferral orders during overnight midtestimony recesses—as long as those orders are tailored to prohibit only discussion of testimony for its own sake and don’t sweep in constitutionally protected topics such as trial strategy, plea discussions, and factual inquiries relevant to tactical decisions.

Going forward, defense counsel must ensure any qualified conferral order is clear in the record and doesn’t intrude upon discussions safeguarded by the Sixth Amendment under Villareal. Defense counsel also should object to any improper incursion on the defendant’s rights.

Second, the decision draws a meaningful distinction between blanket no-discussion-of-testimony orders—which risk chilling protected consultation—and qualified orders such as the one at issue in this case, which prohibit only the “management” of ongoing testimony.

Defense counsel should be prepared for trial courts to rely on Villarreal in issuing such qualified orders with greater frequency. As always, they should prepare a defendant for vigorous cross-examination before the defendant takes the stand because the trial court likely will prohibit discussions of the content of their testimony during an overnight recess.

Third, defense counsel confronted with a qualified conferral order should carefully document any protected topics they were unable to discuss because of the order. Creating a clear record of chilled protected discussion will be essential for any future Sixth Amendment challenge to the scope of a particular conferral order.

Fourth, defense counsel should continue to advise clients about the right to remain silent and the risks of testifying in one’s own defense. The risk is particularly acute in a criminal case, where defendants open themselves up to wide-ranging cross examination upon taking the stand.

Villarreal reinforces that once the defendant takes the stand, they will be unable to seek guidance from counsel about the testimony at least until redirect. Defense counsel should ensure clients are aware of the limitations on midtestimony legal advice, among other risks, before they decide whether to testify in their defense.

The case is Villarreal v. Texas, U.S., No. 24-557, 2/25/26.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Jackson D. Toof is a partner at ArentFox Schiff and heads its complex litigation practice in Washington, DC.

Michael F. Dearington is a partner at ArentFox Schiff.

John M. Hindley is an associate at ArentFox Schiff.

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