425 U.S.

80
96 S.Ct. 1330
47 L.Ed.2d 592

John A. GEDERS, Petitioner,

v.
UNITED STATES.
No. 74-5968.
Argued Dec. 1, 1975.
Decided March 30, 1976.

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 crossexamination 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 illequipped 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's 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
5 Cir., 502 F.2d 1, reversed and remanded.
Seymour L. Honig, for petitioner.
Sidney M. Glazer, Washington, D.C., for respondent.
Mr. Chief Justice BURGER delivered the opinion of the Court.

We granted certiorari to consider whether a trial court's order directing

petitioner, the defendant in a federal prosecution, not to consult his attorney
during a regular overnight recess, called while petitioner was on the stand as a
witness and shortly before cross-examination was to begin, deprived him of the
assistance of counsel in violation of the Sixth Amendment.

A grand jury in the Middle District of Florida returned indictments charging

petitioner and several codefendants with conspiracy to import and illegal
importation of a controlled substance into the United States, in violation of 18
U.S.C. 371 and 21 U.S.C. 952(a), and with possession of marihuana, in
violation of 21 U.S.C. 841(a). The charges grew out of plans for several of
the defendants to fly about 1,000 pounds of marihuana from Colombia into the
United States, plans that might have succeeded but for the fact that the pilot of
the charter plane informed the United States Customs Service of the
arrangements.

The trial of petitioner and one codefendant commenced on Tuesday, October 9,

1973. Petitioner testified in his own defense on Tuesday, October 16, and
Wednesday, October 17. Petitioner's counsel concluded direct examination at
4:55 p. m. Tuesday. When the court recessed for the night, and after the jury
departed, the prosecutor asked the judge to instruct petitioner not to discuss the

case overnight with anyone. Throughout the trial, the judge had given the same
instruction to every witness whose testimony was interrupted by a recess.
4

Petitioner's attorney objected, explaining that he believed he had a right to

confer with his client about matters other than the imminent cross-examination,
and that he wished to discuss problems relating to the trial with his client. The
judge indicated his confidence that counsel would properly confine the
discussion, but expressed some doubt that petitioner would be able to do so,
saying: "I think he would understand it if I told him just not to talk to you; and I
just think it is better that he not talk to you about anything." The judge
suggested that counsel could have an opportunity immediately after the recess
to discuss with his client matters other than the cross-examination, such as what
witnesses were to be called the next day, and he indicated that he would grant a
recess the next day so that counsel could consult with petitioner after
petitioner's testimony ended. Counsel persisted in his objection, although he
appropriately indicated that he would as in fact he did comply with the court's
order.1

When court convened the next morning, petitioner's attorney asked and
received permission to reopen his direct examination of petitioner. The crossexamination which followed was finished in the morning; the judge then called
the luncheon recess. Petitioner whose testimony on redirect examination was
yet to comewas permitted to confer with his attorney during the noon recess.
The trial concluded the following day, and petitioner was convicted on all three
counts; he was sentenced to concurrent three-year prison terms.

The Court of Appeals affirmed petitioner's conviction. United States v. Fink,

502 F.2d 1 (CA5 1974 On the point here at issue, the court held that
petitioner's failure to claim any prejudice resulting from his inability to consult
with counsel during one evening of the trial was fatal to his appeal. In so
holding, the court relied on United States v. Leighton, 386 F.2d 822 (CA2
1967), cert. denied, 390 U.S. 1025, 88 S.Ct. 1412, 20 L.Ed.2d 282 (1968),
dealing with a similar order applied to a noon recess, and rejected the Third
Circuit's position that prejudice need not be shown, United States v. Venuto,
182 F.2d 519 (1950), in a case involving an overnight recess. The Court of
Appeals also disposed of several other claims of error. We granted certiorari
limited to petitioner's claim that the order forbidding consultation with his
attorney overnight denied him the assistance of counsel in violation of the Sixth
Amendment. 421 U.S. 929, 95 S.Ct. 1654, 44 L.Ed.2d 86.

Our cases have consistently recognized the important role the trial judge plays
in the federal system of criminal justice. "(T)he judge is not a mere moderator,

but is the governor of the trial for the purpose of assuring its proper conduct
and of determining questions of law." Quercia v. United States, 289 U.S. 466,
469, 53 S.Ct. 698, 77 L.Ed. 1321, 1324 (1933). A criminal trial does not unfold
like a play with actors following a script; there is no scenario and can be none.
The trial judge must meet situations as they arise and to do this must have broad
power to cope with the complexities and contingencies inherent in the
adversary process. To this end, he may determine generally the order in which
parties will adduce proof; his determination will be reviewed only for abuse of
discretion. Goldsby v. United States, 160 U.S. 70, 74, 16 S.Ct. 216, 218, 40
L.Ed. 343, 345 (1895); United States v. Martinez-Villanueva, 463 F.2d 1336
(CA9 1972); Nelson v. United States, 415 F.2d 483, 487 (CA5 1969), cert.
denied, 396 U.S. 1060, 90 S.Ct. 751, 24 L.Ed.2d 754 (1970). Within limits, the
judge may control the scope of rebuttal testimony, United States v.
Chrzanowski, 502 F.2d 573, 575-576 (CA3 1974); United States v. Perez, 491
F.2d 167, 173 (CA9), cert. denied Sub nom., Lombera v. United States, 419
U.S. 858, 95 S.Ct. 106, 42 L.Ed.2d 92 (1974); may refuse to allow cumulative,
repetitive, or irrelevant testimony, Hamling v. United States, 418 U.S. 87, 127,
94 S.Ct. 2887, 2912, 41 L.Ed.2d 590, 626 (1974); County of Macon v. Shores,
97 U.S. 272, 24 L.Ed. 889 (1877); and may control the scope of examination of
witnesses, United States v. Nobles, 422 U.S. 225, 231, 95 S.Ct. 2160, 2166, 45
L.Ed.2d 141, 149 (1975); Glasser v. United States, 315 U.S. 60, 83, 62 S.Ct.
457, 470, 86 L.Ed. 680, 706 (1942). If truth and fairness are not to be
sacrificed, the judge must exert substantial control over the proceedings.
8

The judge's power to control the progress and, within the limits of the adversary
system, the shape of the trial includes broad power to sequester witnesses
before, during, and after their testimony. Holder v. United States, 150 U.S. 91,
92, 14 S.Ct. 10, 37 L.Ed. 1010 (1893); United States v. Robinson, 502 F.2d 894
(CA7 1974); United States v. Eastwood, 489 F.2d 818, 821 (CA5 1974).
Wigmore notes that centuries ago, the practice of sequestration of witnesses
"already had in English practice an independent and continuous existence, even
in the time of those earlier modes of trial which preceded the jury and were a
part of our inheritance of the common Germanic law." 6 J. Wigmore, Evidence
1837, p. 348 (3d ed., 1940). The aim of imposing "the rule on witnesses," as
the practice of sequestering witnesses is sometimes called, is twofold. It
exercises a restraint on witnesses "tailoring" their testimony to that of earlier
witnesses; and it aids in detecting testimony that is less than candid. See
Wigmore, Supra, 1838; F. Wharton, Criminal Evidence 405 (C. Torcia ed.
1972). Sequestering a witness over a recess called before testimony is
completed serves a third purpose as well preventing improper attempts to
influence the testimony in light of the testimony already given.

The trial judge here sequestered all witnesses for both prosecution and defense
and before each recess instructed the testifying witness not to discuss his
testimony with anyone. Applied to nonparty witnesses who were present to give
evidence, the orders were within sound judicial discretion and are not
challenged here.

10

But the petitioner was not simply a witness; he was also the defendant. A
sequestration order affects a defendant in quite a different way from the way it
affects a nonparty witness who presumably has no stake in the outcome of the
trial. A nonparty witness ordinarily has little, other than his own testimony, to
discuss with trial counsel; a defendant in a criminal case must often consult
with his attorney during the trial. Moreover, "the rule" accomplishes less when
it is applied to the defendant rather than a nonparty witness, because the
defendant as a matter of right can be and usually is present for all testimony and
has the opportunity to discuss his testimony with his attorney up to the time he
takes the witness stand.

11

The recess at issue was only one of many called during a trial that continued
over 10 calendar days. But it was an overnight recess, 17 hours long. It is
common practice during such recesses for an accused and counsel to discuss
the events of the day's trial. Such recesses are often times of intensive work,
with tactical decisions to be made and strategies to be reviewed. The lawyer
may need to obtain from his client information made relevant by the day's
testimony, or he may need to pursue inquiry along lines not fully explored
earlier. At the very least, the overnight recess during trial gives the defendant a
chance to discuss with counsel the significance of the day's events. Our cases
recognize that the role of counsel is important precisely because ordinarily a
defendant is ill-equipped to understand and deal with the trial process without a
lawyer's guidance.

12

"The right to be heard would be, in many cases, of little avail if it did not
comprehend the right to be heard by counsel. . . . (A defendant) is unfamiliar
with the rules of evidence. . . .He lacks both the skill and knowledge adequately
to prepare his defense, even though he (may) have a perfect one. He requires
the guiding hand of counsel at every step in the proceedings against him."
Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 64, 77 L.Ed. 158, 170
(1932).

13

See also Argersinger v. Hamlin, 407 U.S. 25, 31-36, 92 S.Ct. 2006, 2009-2012,
32 L.Ed.2d 530, 535-537 (1972); Gideon v. Wainwright, 372 U.S. 335, 343345, 83 S.Ct. 792, 796, 9 L.Ed.2d 799, 804 (1963). Other courts have

concluded that an order preventing a defendant from consulting his attorney

during an overnight recess infringes upon this substantial right. See United
States v. Venuto, 182 F.2d 519 (CA3 1950); People v. Noble, 42 Ill.2d 425,
248 N.E.2d 96 (1969); Commonwealth v. Werner, 206 Pa.Super. 498, 214 A.2d
276 (1965). But see People v. Prevost, 219 Mich. 233, 189 N.W. 92 (1922).2
14

There are other ways to deal with the problem of possible improper influence
on testimony or "coaching" of a witness short of putting a barrier between client
and counsel for so long a period as 17 hours. The opposing counsel in the
adversary system is not without weapons to cope with "coached" witnesses. A
prosecutor may cross-examine a defendant as to the extent of any "coaching"
during a recess, subject, of course, to the control of the court. Skillful crossexamination could develop a record which the prosecutor in closing argument
might well exploit by raising questions as to the defendant's credibility, if it
developed that defense counsel had in fact coached the witness as to how to
respond on the remaining direct examination and on cross-examination. In
addition the trial judge, if he doubts that defense counsel will observe the
ethical limits on guiding witnesses,3 may direct that the examination of the
witness continue without interruption until completed. the judge considers the
risk high he may arrange the sequence of testimony so that direct- and crossexamination of a witness will be completed without interruption. That this
would not be feasible in some cases due to the length of direct- and crossexamination does not alter the availability, in most cases, of a solution that does
not cut off communication for so long a period as presented by this record.
Inconvenience to the parties, witnesses, counsel, and court personnel may
occasionally result if a luncheon or other recess is postponed or if a court
continues in session several hours beyond the normal adjournment hour. In this
day of crowded dockets, courts must frequently sit through and beyond normal
recess; convenience occasionally must yield to concern for the integrity of the
trial itself.

15

There are a variety of ways to further the purpose served by sequestration

without placing a sustained barrier to communication between a defendant and
his lawyer. To the extent that conflict remains between the defendant's right to
consult with his attorney during a long 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. Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32
L.Ed.2d 358 (1972).

16

The challenged order prevented petitioner from consulting his attorney during a

17-hour overnight recess, when an accused would normally confer with

counsel. We need not reach, and we do not deal with limitations imposed in
other circumstances. We hold that an order preventing petitioner from
consulting his counsel "about anything" during a 17-hour overnight recess
between his direct- and cross-examination impinged upon his right to the
assistance of counsel guaranteed by the Sixth Amendment.
17

Accordingly, the judgment of the Court of Appeals is reversed, and the case is
remanded to the Court of Appeals, with directions that it be remanded to the
District Court for proceedings consistent with this opinion.

18

Reversed and remanded.

19

Mr. Justice STEVENS took no part in the consideration or decision of this case.

20

Mr. Justice MARSHALL, with whom Mr. Justice BRENNAN joins,

concurring.

21

I join in most of the Court's opinion, and I agree with its conclusion that an
order preventing a defendant from consulting with his attorney during an
overnight recess violates the defendant's Sixth Amendment right to counsel.

22

The Court notes that this case does not involve an order barring communication
between defendant and counsel during a "brief routine recess during the trial
day."1 Ante, at 89 n. 2. That is, of course, true. I would add, however, that I do
not understand the Court's observation as suggesting that as a general rule no
constitutional infirmity would inhere in an order barring communication
between a defendant and his attorney during a "brief routine recess." In my
view, the general principles adopted by the Court today are fully applicable to
the analysis of Any order barring communication between a defendant and his
attorney, at least where that communication would not interfere with the orderly
and expeditious progress of the trial.

23

Thus, as the Court holds, a defendant who claims that an order prohibiting
communication with his lawyer impinges upon his Sixth Amendment right to
counsel need not make a preliminary showing of prejudice. Such an order is
inherently suspect, and requires initial justification by the Government.

24

The only justification expressly considered by the Court in its opinion is the
desire to avoid the risk of unethical counseling by an attorney.2 The Court holds

that the fear of unethical conduct is not a sufficient ground for an order barring
overnight communication between a defendant and his attorney, and the same
would hold true absent the most unusual circumstances, I take it, for an order
barring consultation between a defendant and his attorney at Any time before or
during the trial.3 If our adversary system is to function according to design, we
must assume that an attorney will observe his responsibilities to the legal
system, as well as to his client. I find it difficult to conceive of any
circumstances that would justify a court's limiting the attorney's opportunity to
serve his client because of fear that he may disserve the system by violating
accepted ethical standards. If any order barring communication between a
defendant and his attorney is to survive constitutional inquiry, it must be for
some reason other than a fear of unethical conduct.

The discussion among the judge, petitioner's attorney (Mr. Rinehart), and the
prosecutor (Mr. Blasingame), summarized in the text, was:
"MR. BLASINGAME: Has this witness been instructed now that he is not to
talk to anyone whatsoever, including his attorneys or anyone about this case at
all?
"MR. RINEHART: If he were instructed not to talk to his attorney, I feel that it
would be improper. I think I always have the right to talk to my client.
"MR. BLASINGAME: I don't think so.
"THE COURT: Well I don't know whether you requested that I so instruct
another witness when there was a recess, to that effect; but you do let's make
this clear you always have the right to talk to your client but except for the
accident and 'accident' means something over which you have no control the
cross-examination would have been right now and you would not have had an
opportunity to talk to him.
"Now, because of the fact that it is 5:00 o'clock and we are recessing until
tomorrow, you would have that opportunity.
"If you had requested the opportunity and this had been 2:00 o'clock and if you
had said 'If the Court please, I would like to have a recess' and then, outside the
presence of the Jury, had said, 'because I want to talk to my client'; what would
I have said?
"MR. RINEHART: You probably would not have granted the recess, Your
Honor.

"THE COURT: Should I have?

"MR. RINEHART: Not if there was something else to do, Your Honor.
"THE COURT: Well would you have had a right to just talk to your client
while he is subject to cross-examination?
"MR. RINEHART: Well I would not
"THE COURT: Would you have?
"MR. RINEHART: I would not instruct my client anyway.
"THE COURT: Well would you have talked to him? Would
you have had a right to confer with him? That is what I want to know.
"MR. RINEHART: If there were matters that I felt I had not brought out on
Direct and that I should have covered
"THE COURT: Before he is cross-examined?
"MR. RINEHART: Even before he is cross-examined. Sometimes we
remember things we did not
"THE COURT: Yes, sir. That is the reason you are entitled to Re-direct.
"MR. RINEHART: Right.
"THE COURT: Now I would appreciate it if you would answer my question.
We have had a little trouble about being responsive.
"MR. RINEHART: All right.
"THE COURT: My question is: While a witness is subject to crossexamination, even though he is a defendant, does his attorney have the right to
confer with him before he is cross-examined?
"You have been practicing law for a long time.
"MR. RINEHART: I feel that I do have the right to confer with him but not to
coach him as to what he may say on cross-examination or how to answer
questions.
"THE COURT: Then what else would you need to talk to him about?

"MR. RINEHART: I don't know. Such as whom should I call as the next
witness.
"THE COURT: All right.
"MR. RINEHART: There are numerous strategic things that an attorney must
confer with his client about.
"THE COURT: Well I don't have any questions, Mr. Rinehart, about what you I
think you are a disciplined man. I think you are trained in the law. And I think
if you should tell me, for instance, that you would not discuss this direct
testimony with your client I would accept that statement without any
qualification.
"MR. RINEHART: Your Honor, I can assure you of that.
"THE COURT: I understand that. But your client, as far as I know, has not had
any legal training; and I don't
know anything about him other than what I have heard here today. And I don't
know that he is subject to that same instruction that he would understand it.
"I think he would understand it if I told him just not to talk to you; And I just
think it is better that he not talk to you about anything.
"I think you might ask him right now right here while we are here what
witnesses he thinks you ought to call in the morning.
"Let's put it this way. Your ask him right now if he thinks there are any
witnesses you ought to call during the evening. If anything comes up after he
has been cross-examined, and after you have had an opportunity for re-direct,
we would have a recess and you would have all the time you need to talk to him
about strategies or anything else. We will take the rest of this month, if
necessary, to give you an opportunity and him an opportunity for a fair trial.
But we are not going to let strategy take the place of this situation.
"And I have held that I find that I don't think you would do anything wrong; but
I think it would be better, under the circumstances of this case. And that is my
ruling.
"MR. RINEHART: If that is your ruling, Your Honor, we will obey it.
"THE COURT: All right. Now you just move to the side, please.
"Now, Mr. Geders, will you stand up. I direct you not to discuss your testimony

in this case with anyone until you are back here tomorrow morning at 9:30 for
the purpose of being cross-examined.
"Do you understand that?
"MR. GEDERS: I understand.
"THE COURT: All right, thank you. All right, the Court will be in recess."
(Emphasis added.)
The ambiguity of this colloquy appears to be resolved by the direction that
petitioner "not talk to you (counsel) about anything."
2

United States v. Leighton, 386 F.2d 822 (CA 2 1967), on which the Court of
Appeals relied, involved an embargo order preventing a defendant from
consulting his attorney during a brief routine recess during the trial day, a
matter we emphasize is not before us in this case. See United States v.
Schrimsher, 493 F.2d 848 (CA5 1974); United States v. Crutcher, 405 F.2d 239
(CA2 1968), cert. denied, 394 U.S. 908, 89 S.Ct. 1018, 22 L.Ed.2d 219 (1969);
see also Krull v. United States, 240 F.2d 122 (CA5), cert. denied, 353 U.S. 915,
77 S.Ct. 764, 1 L.Ed.2d 668 (1957). Cf. Pendergraft v. State, 191 So.2d 830
(Miss.1966).

An attorney must respect the important ethical distinction between discussing

testimony and seeking improperly to influence it. Ethical Consideration 7-26 of
the American Bar Association Code of Professional Responsibility (1975)
states:
"The law and Disciplinary Rules prohibit the use of fraudulent, false, or
perjured testimony or evidence. A lawyer who knowingly participates in
introduction of such testimony or evidence is subject to discipline. A lawyer
should, however, present any admissible evidence his client desires to have
presented unless he knows, or from facts within his knowledge should know,
that such testimony or evidence is false, fraudulent, or perjured."
Disciplinary Rule 7-102 of the Code provides in relevant part:
"(A) In his representation of a client, a lawyer shall not:
"(6) Participate in the creation or preservation of evidence when he knows or it
is obvious that the evidence is false.
"(7) Counsel or assist his client in conduct that the lawyer knows to be illegal
or fraudulent.

"(8) Knowingly engage in other illegal conduct or conduct contrary to a

Disciplinary Rule."
Any violation of these strictures would constitute a most serious breach of the
attorney's duty to the court, to be treated accordingly.
We note that the judge expressed full confidence that petitioner's trial attorney
would respect the difference between assistance and improper influence.
1

I would assume, however, that the Court's repeated reference to the length of
the overnight recess in this case 17 hours is not intended to have any dispositive
significance, and that the Court's holding is at least broad enough to cover all
overnight recesses.

For the distinction between ethical and unethical counseling, see Ante, at 90 n.
3.

The Court suggests, however, that "doubts that defense counsel will observe the
ethical limits on guiding witnesses" would justify such actions as postponing
the luncheon recess or extending the normal adjournment hour in order to
complete the defendant's testimony. Ante, at 90-91. I would assume that trial
courts generally take such steps out of a desire to move the trial along in an
orderly and expeditious fashion, not out of fear that defense counsel might
exceed the bounds of ethical conduct if given the opportunity. And I am
unwilling to endorse the notion that where the orderly and expeditious progress
of the trial would not be served, the trial court should nevertheless feel free to
continue the defendant's testimony without interruption because of a belief that
defense counsel is likely to act unethically.