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It is the defendant's right to unrestricted access to his lawyer for advice on a variety of trial-related matters that is controlling in the context of a long recess. The fact that such discussions will inevitably include some consideration of the defendant's ongoing testimony does not compromise that basic right. But in a short recess in which it is appropriate to presume that nothing but the testimony will be discussed, the testifying defendant does not have a constitutional right to advice.
Appellant was convicted, after a jury trial, of participating in a murder, kidnapping, and sexual assault. He appealed his conviction on the basis that he was denied the right to counsel since he was prohibited from conferring with counsel during a 15-minute recess following his direct examination. The state appellate court affirmed the appeal. Appellant obtained a federal writ of habeas corpus and the district court reversed the conviction. The appellate court reversed the lower federal court, holding that appellant was not prejudiced in light of the overwhelming evidence against him. The Supreme Court granted certiorari to resolve the question of whether appellant was entitled to counsel during all recesses.
Was the appellant entitled to counsel during all recesses?
The Court affirmed the federal appellate court and held that once appellant became a witness, he was not permitted to consult with counsel. The Court further found that while long recesses may constitutionally require a defendant access to counsel, the federal constitution did not compel every trial judge to allow a defendant to consult with his lawyer while his testimony was in progress if the judge decided there was a good reason to interrupt the trial for a few minutes.