SCOTUS After Hours: Villarreal v. Texas and the Struggle to Define Permissible Consultation

I. Introduction

On October 6, 2025, the Supreme Court opened the Term with Villarreal v. Texas (No. 24-557), its first reconsideration in nearly four decades of how the Sixth Amendment governs attorney–client consultation during a defendant’s testimony. The Amendment’s guarantee of the “Assistance of Counsel” is widely understood to privilege individuals against complete bans on attorney–client communication during overnight recesses, as the Court held in Geders v. United States (1976). It has also, as the Court recognized in Perry v. Leeke (1989), permitted narrow, temporary restrictions during short breaks in ongoing testimony. Unresolved in this precedent, however, is the central question of whether trial courts may prohibit the discussion of a defendant’s testimony itself in consultations during an overnight recess, an inconclusive jurisprudential hole which Villarreal seems poised to close.

II. Case Background

David Asa Villarreal was charged with murdering his boyfriend, Aaron Estrada, during an alleged meth-induced episode. Villarreal claimed he acted in self-defense and served as the sole defense witness during his trial in Bexar County, Texas. Villarreal’s direct examination began late in the afternoon and lasted approximately one hour, after which the trial judge called an early recess. Counsel were instructed that they “may speak with Mr. Villarreal about any matter other than his testimony,” a directive which the court analogized to the prohibition on conferring with a witness while the jury is actively hearing testimony. After resuming his testimony the following morning, Villarreal was convicted and sentenced to sixty years in prison.

The Court of Criminal Appeals of Texas affirmed, characterizing the lower court’s restriction as a permissible subject-matter limit compatible with the standards set in Geders. By adopting this view, the court placed Texas on the minority side of a preexisting divide over whether a prohibition limited to testimony-related discussions is feasible with the Sixth Amendment when other forms of attorney–client communication remain available.

III. Oral Argument

At argument, several members of the bench seemed unconvinced by Texas’s more aggressive reading of Perry. Although no justice signaled appetite for collapsing Perry outright, many expressed skepticism that a recess spanning the end of one trial day and the beginning of the next could be governed by, for example, the identical logic which would support a fifteen-minute mid-testimony pause. In the petitioner’s early presentation, Justice Kavanaugh in particular repeatedly returned to what he described as the “accident of a recess,” evoking Justice Blackmun’s concern in Geders that a defendant’s rights should not hinge on whether the judge happens to break at “4:45 or 5:00.” He further questioned the petitioner as to whether it is coherent to treat “two classes of defendants” differently based purely on when the judge happens to adjourn, especially when an overnight recess “might be critical to the outcome of the trial” because it offers the only meaningful opportunity for counsel to evaluate the day’s testimony and adjust strategy.

This emphasis on timing is important, as it suggests that at least some members of the Court see Perry not as authorizing a broad prohibition on testimony-related consultation. Indeed, the petitioner leaned on this point, reminding the Court that Geders recognized that overnight recesses “have always been times of intense strategizing,” whereas the logistical concerns that animated Perry concern only “tiny little recess[es]” during active testimony. Justice Kagan’s questioning followed a similar trajectory, acknowledging that the Court’s cases draw a “pretty sharp line” between testimony and strategy, yet still pondering whether Texas’s restriction actually respects that distinction in practice given that trial strategy “necessarily” depends on what the defendant has already told the jury.

A second line of questions saw the Court’s attention seem to turn away from formal categorization and towards feasibility. Even assuming that overnight recesses are doctrinally distinct from their daytime counterparts, several justices remained uncertain whether Texas’s subject-matter limit could be faithfully enforced without collapsing into inquiries regarding the content of privileged communications themselves. Justice Jackson, who was particularly vocal in questioning throughout Villarreal, pressed the State on how trial courts could realistically police a ban on testimony-related discussion without implicitly also probing past the boundaries of attorney-client privilege. To Jackson’s claim, any workable rule must preserve “confidential preparation,” a core aspect of the attorney-client privilege that the Court has historically recognized as essential to the Sixth Amendment’s guarantee of effective “Assistance of Counsel.” In response to suggestions by the State that reminders about demeanor, such as whether a defendant is “mumbling” or avoiding eye contact, would constitute prohibited coaching, Chief Justice Roberts expressed a similar skepticism that such a standard could coexist with meaningful assistance.

The sole justice who gestured toward a narrower permissible zone was Justice Barrett, who expressed interest in whether excluding the “content of the testimony or the manner of its delivery” while permitting discussion of “strategic consequences,” such as “whether to take a plea… [or] to call another witness,” might be a workable application of Perry in the courtroom. Her questions, however, did not signal that such a rule is fit for adoption so much as serve as an invitation for the competing parties to clarify whether any administrable boundary exists at all.

IV. Looking Forward

At its heart, Villarreal asks two questions:

(1) Does an overnight recess during testimony fall within the core holding of Geders, which would guarantee a defendant the right to consult with counsel about all aspects of the case without qualification, or the short-break framework of Perry?

(2) Assuming some limit is permissible, can a principled line be drawn between “testimony” and “strategy” that does not require courts to probe privileged conversations or place defense counsel at risk of sanction?

If anything can be inferred from this framing, it is that a majority of the justices appear unwilling to wholly embrace a model that treats overnight recesses as functionally identical to mid-testimony pauses. The bench seems less persuaded that a workable subject-matter rule akin to the State’s suggested principle exists at all, reflecting doubt that the distinction Texas proposes can survive contact with ordinary trial practice. Given the prevailing skepticism on the bench, the Court will likely deliver a verdict which reaffirms and partially refines Geders as the template for overnight recesses restriction, seeming poised to endorse a rule that preserves earnest strategic consultation when the courtroom goes dark, even if it stops short of articulating a comprehensive theory of how far trial-management discretion reaches once a defendant has taken the stand.

Cover image by Carlos Javier Yuste Jiménez licensed under the Unsplash License.