Justices Weigh Order That Barred Defendant-Lawyer Talks (1)

US Supreme Court justices considered whether a trial court violated a criminal defendant’s legal rights by barring them from discussing testimony with their lawyer during an overnight recess.

Several justices from both sides of the ideological divide on Monday appeared skeptical at argument of the claim that such an order breached the constitutional right to counsel, when the court has already found that a more stringent order is valid for 15-minute breaks during testimony.

Justice Brett Kavanaugh said it seemed to create two class of defendants, one of which gets the benefits of strategizing with their counsel midway through a crucial part of trial.

“Does that make a lot of sense?” Kavanaugh asked.

Justice Neil Gorsuch separated the right to counsel with rights during testimony: “What in the Constitution, what in history, suggests you have a right to manage a witness’ testimony during a break?”

But the justices also appeared open to lawyers speaking with their client about broader trial strategies and issues that relate to testimony when extended breaks take place.

Monday’s argument, which kicked off the court’s 2025-26 term, stemmed from a criminal prosecution in Texas of David Villarreal, who was convicted of murdering his boyfriend and sentenced to 60 years in prison.

Villarreal claimed self-defense and chose to testify during trial. But the judge called an overnight recess during his testimony because of a pre-planned meeting he had to attend.

The judge issued “qualified conferral order” barring defense counsel from speaking with their client about any testimony. Villarreal has since claimed the order infringed on his right to counsel and weighed on the jury’s decision. He claimed the violation requires the court to reverse a judgment affirming his conviction.

Courts are split on whether nonconferral orders during overnight trial recesses are constitutional, and the Supreme Court’s decision could have implications for the trial strategies of prosecutors and defense lawyers.

Where’s Line?

The case is likely to turn in part on two past Supreme Court cases that dealt with a defendant’s access to an attorney at trial. In 1976, the court ruled in Geders v. US that a judge’s order preventing counsel and the accused from speaking during a 17-hour break violated the constitutional right to counsel.

Fourteen years later, the court said in Perry v. Leeke that a judge was justified in barring a defendant from speaking with their lawyer or anyone else during a 15-minute break in testimony.

The Bexar County, Texas, Criminal District Attorney’s Office argued Monday that the court’s non-conferral order aligned with these precedents, barring witness coaching but allowing communication “incidental” to the testimony.

The Justice Department went even further while presenting as a friend of the court. Defendants shouldn’t be allowed to talk about testimony altogether with their counsel, DOJ argued.

Stuart Banner, an attorney for Villarreal, claimed the line Texas created “is no line at all” and interferes with one of a lawyer’s most crucial jobs during a trial. He argued there are other avenues to prevent witness coaching.

But Banner faced some sharp questioning from the justices as they tried to parse his reading of what an attorney can talk about with their client.

“Don’t fight me,” Justice Sonia Sotomayor said, after asking him whether the only rule a trial court can give overnight is one that says a lawyer is barred from telling a defendant to give false testimony. Banner said his answer is “mostly yes.”

The case is: Villarreal v. Texas, U.S., 24-557, argument, 10/6/25.