Geders v. United States

• Citation: 96 S.Ct. 1330,47 L.Ed.2d 592,425 U.S. 80
• Decision Date: 30 March 1976
• Docket Number: No. 74-5968,74-5968
• Parties: John A. GEDERS, Petitioner, v. UNITED STATES
• Court: United States Supreme Court

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 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'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.

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 cross-examination which followed was finished in the morning; the judge then called the luncheon recess. Petitioner whose testimony on redirect examination was yet to come—was 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 convic- tion. 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.

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...