Perry v. Leeke
102 L. Ed. 2d 624, 1989 U.S. LEXIS 306, 488 U.S. 272 (1989)
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Rule of Law:
A criminal defendant does not have a Sixth Amendment right to consult with their attorney during a short recess that occurs while the defendant is in the middle of testifying. A trial court may bar such consultation to preserve the integrity of the defendant's cross-examination.
Facts:
- Petitioner Perry was on trial for murder, kidnaping, and sexual assault.
- Perry's defense was that he did not actively participate in the abduction or homicide and that his participation in the sexual assault was the product of duress.
- Evidence presented on his behalf indicated that Perry was mildly retarded and easily influenced by others.
- Perry took the witness stand to testify in his own defense after a lunch recess.
- At the conclusion of Perry's direct testimony, the trial judge declared a 15-minute afternoon recess.
- The judge, without prior notice, ordered that Perry not be allowed to talk to anyone, including his lawyer, during the break.
Procedural Posture:
- Petitioner Perry was tried and convicted by a jury in a South Carolina state court.
- After the judge issued the order barring consultation, Perry's counsel moved for a mistrial, which the trial judge denied.
- Perry appealed his conviction to the Supreme Court of South Carolina, which affirmed the conviction.
- Perry filed a petition for a writ of habeas corpus in the U.S. District Court.
- The District Court granted the writ, finding a constitutional violation from which prejudice need not be shown.
- The state appealed to the U.S. Court of Appeals for the Fourth Circuit.
- The Court of Appeals, sitting en banc, reversed the District Court, holding that while a constitutional error had occurred, it was not prejudicial and did not warrant a new trial.
- The U.S. Supreme Court granted certiorari to review the decision of the Court of Appeals.
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Issue:
Does a trial court's order barring a criminal defendant from consulting with his attorney during a brief 15-minute recess between the defendant's direct and cross-examination violate the defendant's Sixth Amendment right to the assistance of counsel?
Opinions:
Majority - Justice Stevens
No, a trial court's order barring a defendant from consulting with counsel during a brief mid-testimony recess does not violate the Sixth Amendment. The court distinguished this case from Geders v. United States, which involved an overnight recess, based on the duration and purpose of the recess. When a defendant chooses to testify, they are subject to the same rules as other witnesses, which includes being sequestered from counsel to preserve the integrity of their testimony. The truth-seeking function of a trial, particularly the effectiveness of cross-examination, can be undermined if a witness is permitted to consult with counsel between direct and cross-examination to 'regroup and regain a poise and sense of strategy.' While a long, overnight recess involves discussions on broad trial strategy to which a defendant has a constitutional right, a short recess is presumed to involve only the ongoing testimony, and a defendant has no constitutional right to be coached while testifying.
Dissenting - Justice Marshall
Yes, a trial court's order barring a defendant from consulting with counsel during a brief recess violates the Sixth Amendment. The majority's distinction between 'short' and 'long' recesses is arbitrary, has no constitutional basis, and creates an unworkable standard for lower courts. The Sixth Amendment guarantees a defendant the right to counsel at every critical stage of the proceedings, and a recess during trial is such a stage. Defendants are fundamentally different from other witnesses and have a constitutional right to confer with counsel about all aspects of their case, including tactical matters that can arise at any moment. Barring communication, even for a short time, wrongly presumes that counsel will act unethically and ignores the possibility that crucial, non-testimonial matters could be discussed.
Concurring - Justice Kennedy
I join the majority in holding that petitioner was not denied his constitutional right to assistance of counsel. Because there was no constitutional violation, it is unnecessary to address the separate issue of whether prejudice must be shown when the right to counsel is denied. Therefore, I do not join Part II of the Court's opinion, which discusses that issue.
Analysis:
This decision refines the rule from Geders v. United States by creating a distinction between long and short recesses during a defendant's testimony. It prioritizes the trial's truth-seeking function and the integrity of cross-examination over a defendant's absolute right to counsel during a brief mid-testimony break. The ruling gives trial judges clear authority to prevent potential coaching before cross-examination but also introduces ambiguity, leaving lower courts to determine what duration constitutes a 'short' versus a 'long' recess. This holding directly impacts trial practice by creating a specific exception to a defendant's ability to consult with counsel during a critical phase of the trial.
