Error to Prohibit Consultation with Defendant On Witness Stand During Overnight Recess

II. The order limiting attorney-client discussion.
[4] Sandoval-Mendoza testified over the course of three days. The government's cross examination spanned a morning recess, a lunch recess, an overnight recess, and another morning recess the following day. The district court instructed Sandoval-Mendoza and his lawyer not to discuss his testimony during any of the recesses, but permitted them to discuss anything else. Sandoval-Mendoza's lawyer objected and was overruled. When the cross examination ended, the district court permitted Sandoval-Mendoza and his lawyer to discuss his testimony before redirect.

Sandoval-Mendoza argues that the district court's order prohibiting him from discussing his testimony with his lawyer during the recesses amounted to a structural error under Geders v. United States^FN14 and Perry v. Leeke.^FN15 Perry and Geders reach opposite conclusions based on different facts. In Geders, the trial court prohibited all communication between the defendant and his lawyer during an overnight recess between direct and cross examination. The Supreme Court held that this prohibition required reversal because it deprived the defendant of his Sixth Amendment right to counsel.^FN16 In Perry, the trial court prohibited all communication between the defendant and his lawyer during a fifteen minute recess between direct and cross examination. The Supreme Court held that this prohibition did not violate the Sixth Amendment.^FN17 Perry distinguished Geders, on the ground that “the normal consultation between attorney and client that occurs during an overnight recess would 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.” ^FN18

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The facts of this case fall in the middle. The district court instructed Sandoval-Mendoza's lawyer, “You can communicate. Just not concerning cross, his testimony, now that he's on cross-examination, unless that's concluded. That doesn't mean you can't talk with your client at all, just not concerning his testimony.” On the one hand, the district court prohibited communication between Sandoval-Mendoza and his lawyer during an overnight recess, suggesting Geders controls. On the other hand, the district court only prohibited Sandoval-Mendoza and his lawyer from discussing his testimony, rather than anything at all, suggesting Perry controls.

The core issue is whether prohibiting a defendant and his lawyer from discussing his testimony during an overnight recess violates the Sixth Amendment. Two other circuits have addressed this question. In Mudd v. United States, the District of Columbia Circuit held a similar prohibition unconstitutional under Geders.^FN19 And in United States v. Santos, the Seventh Circuit held a similar prohibition unconstitutional under Perry. ^FN20

This is a difficult question. Cross examination best exposes the truth when a witness must answer questions unaided. Coaching may vitiate its value. But it is hard to see how a defendant and his lawyer can communicate without implicit coaching. The Seventh Circuit suggests that “the judge may instruct the lawyer not to coach his client” but may not prohibit discussion of the client's testimony.^FN21 But that is not a workable rule, because coaching is implicit in any discussion of a defendant's testimony, even if the defendant's lawyer tries his best to avoid coaching.^FN22

We conclude that any overnight ban on communication falls on the Geders side of the line and violates the Sixth Amendment. That seems the fairer reading of Perry, which only permitted prohibitions on communication between a defendant and his lawyer during a “brief recess.” ^FN23 Perry recognized a defendant has a “constitutional right” to discuss matters other than his own testimony with his lawyer, “such as the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain,” during an overnight recess.^FN24 And it conceded that “such discussions will inevitably include some consideration of defendant's ongoing testimony.” ^FN25 Indeed, it is hard to see how a defendant's lawyer could ask him for the name of a witness who could corroborate his testimony or advise him to change his plea after disastrous testimony, subjects Perry expressly says a defendant has a right to discuss with his lawyer during an overnight recess, without discussing the testimony itself.

[5] Thus, we conclude that trial courts may prohibit all communication between a defendant and his lawyer during a brief recess before or during cross-examination, but may not restrict communications during an overnight recess.^FN26 This simple rule is consistent with the reasoning of Geders and Perry. And it has several other advantages. First, it is easy to understand and apply. Second, it dispenses with pretense. Jurors can believe that a defendant did not communicate with his lawyer during a bathroom break. But only a lawyer more wedded to words than common sense can believe that a defendant communicated with his lawyer during an overnight recess without at least implicitly discussing his testimony.

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Third, as Geders explains, prosecutors and judges can address the coaching problem without prohibiting communication during an overnight recess. The trial court may “exercise reasonable control” over the order and timing of direct and cross examination in order to “make the interrogation and presentation effective for the ascertainment of the truth.” ^FN27 For instance, it “may direct that the examination of the witness continue without interruption until completed” or “arrange the sequence of testimony so that direct- and cross-examination of a witness will be completed without interruption.” ^FN28 If a defense lawyer strings out direct examination until the usual time for the evening recess, the court can delay the recess and give the prosecutor a few minutes to get in some cross examination.

Thus, we conclude that the district court erred in prohibiting Sandoval-Mendoza and his lawyer from discussing his testimony during an overnight recess. But does the error require reversal? While Geders implies it does, ^FN29 Geders, a 1976 decision, preceded many recent Supreme Court decisions requiring prejudice as well as constitutional error for reversal. ^FN30 Still, under the recent Supreme Court decision in United States v. Gonzales-Lopez,^FN31 if an error is structural, prejudice is irrelevant. We need not decide whether or not an overnight prohibition of communications regarding the defendant's testimony is structural error, because another error, described below, independently requires reversal.



U.S. v. Sandoval-Mendoza  L 3783435, *3 -5 (C.A.9  (C.A.9 (Cal.),2006)