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EVERYBODY’S TALKING AT ME

There is little in American criminal law as sacred as a defendant’s right to talk freely and confidentially with his or her attorney. But even the sacred has exceptions.

Last week, the Supreme Court ruled 9-0 that when a trial court recesses a criminal trial during a defendant’s testimony, the court may order that the defendant and counsel not discuss that testimony during the break except where it is incidental to talking trial strategy or taking a plea deal.

On trial for murder, Aaron Villarreal took testified in his own defense. After about an hour, the trial judge recessed for the rest of the day and told Aaron and his lawyer not to talk about his testimony overnight. Aaron was convicted.

On appeal, he argued that the order not to discuss his testimony violated his 6th Amendment right to effective assistance of counsel.

The Supreme Court agreed, listing some types of attorney-client discussion that a trial court may not prohibit. “A defense attorney may rehearse her client’s testimony before her client takes the witness stand,” Justice Ketanji Brown Jackson wrote for the Court. “And a defense attorney may debrief her client’s testimony after her client leaves the witness stand for good. Such discussion of testimony qua testimony is entirely proper and the consultation that enables it is constitutionally protected before the defendant’s testimony begins and after it concludes. But for the duration of the defendant’s time on the stand, consultation about the testimony itself—rather than incidental discussion of testimony in service of protected topics—sheds its constitutional protection.”

“No less than before or after his testimony, a defendant’s access to advice about trial strategy remains essential to the collaborative enterprise that is criminal defense,” Brown held. What’s more, the flow of information goes both ways, she said, with counsel remaining free to obtain information from the client on which trial strategy may hinge.

The Court acknowledged in a footnote that “[t]he line between discussion of testimony for its own sake and discussion of testimony incidental to other topics may not always be razor sharp.  We trust that defense counsel will not evade the spirit of qualified conferral orders by couching discussion of testimony qua testimony in strategic terms.”

Villarreal v. Texas, Case No. 24-557, 2026 U.S. LEXIS 1103 (February 25, 2026)

~ Thomas L. Root