Geders v. United States, 425 U.S. 80 (1976)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Syllabus

The trial court’s order preventing petitioner, the defendant in a federal criminal prosecution, from consulting his counsel "about anything" during a 17-hour overnight recess in the trial between his direct- and cross-examination held to deprive petitioner of his right to the assistance of counsel guaranteed by the Sixth Amendment. Pp. 86-91.

(a) A federal trial judge has broad power to sequester nonparty witnesses before, during, and after their testimony to restrain them from "tailoring" their testimony, to aid in detecting less-than-candid testimony, and (in the case of a recess called before testimony is completed) to prevent improper attempts to influence the testimony in light of the testimony already given. But a sequestration order applied to a criminal defendant affects the defendant quite differently from a nonparty witness, who presumably has no stake in the trial’s outcome and little, other than his own testimony, to discuss with trial counsel. The defendant has the right to be present for all testimony, and may discuss his testimony with his attorney up to the time he takes the witness stand, so sequestration accomplishes less when applied to a defendant during a recess. A defendant is ordinarily ill-equipped to comprehend the trial process without a lawyer’s guidance; he often must consult with counsel during the trial, and during overnight recesses often discusses the events of the day’s trial and their significance. Pp. 87-89.

(b) The problem of possible improper influence on testimony or "coaching" can be dealt with in other ways, such as by a prosecutor’s skillful cross-examination to discover whether "coaching" occurred during a recess, or by the trial judge’s directing that the examination of witnesses continue without interruption until completed, or otherwise arranging the sequence of testimony so that direct- and cross-examination of a witness will be completed without interruption. Pp. 89-91.

(c) To the extent that conflict remains between the defendant’ right to consult with his attorney during an overnight recess in the trial, and the prosecutor’s desire to cross-examine the defendant without the intervention of counsel, with the risk of improper "coaching," the conflict must, under the Sixth Amendment, be resolved in favor of the right to the assistance and guidance of counsel. P. 91.

502 F.2d 1, reversed and remanded.

BURGER, C.J., delivered the opinion of the Court, in which all Members joined except STEVENS, J., who took no part in the consideration or decision of the case. MARSHALL, J., filed a concurring opinion, in which BRENNAN, J., joined, post, p. 92.