Perry v. Leeke
488 U.S. 272 (1989)

Annotate this Case

U.S. Supreme Court

Perry v. Leeke, 488 U.S. 272 (1989)

Perry v. Leeke

No. 87-6325

Argued November 8, 1988

Decided January 10, 1989

488 U.S. 272

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE FOURTH CIRCUIT

Syllabus

At the conclusion of petitioner's direct testimony in his state court trial for murder and related offenses, the trial judge declared a 15-minute recess and ordered that petitioner not be allowed to talk to anyone, including his lawyer, during the break. In affirming petitioner's conviction, the South Carolina Supreme Court ruled that Geders v. United States,425 U. S. 80 -- in which it was held that a trial court's order directing a defendant not to consult his attorney during an overnight recess, called while the defendant was on the witness stand, violated his Sixth Amendment right to the assistance of counsel -- did not require reversal, since this Court had there emphasized the fact that a defendant would "normally confer" with counsel during an overnight recess, and had explicitly disclaimed any intent to deal with limitations imposed in other circumstances. The state court declared that, normally, counsel is not permitted to confer with his client between direct and cross-examination. Subsequently, the Federal District Court granted petitioner a writ of habeas corpus, but the Court of Appeals reversed. Although agreeing with the District Court that Geders applied, and that constitutional error had occurred, the court disagreed with the lower court's ruling that a defendant subjected to a Geders violation need not demonstrate prejudice in order to have his conviction set aside. The court concluded that petitioner's conviction should stand because the trial court's error was not prejudicial under Strickland v. Washington,466 U. S. 668, in that the evidence against petitioner was overwhelming, and there was no basis for believing that his testimony on cross-examination would have been different had he been given an opportunity to confer with his counsel during the recess.

Held:

1. A showing of prejudice is not an essential component of a violation of the Geders rule, in light of the fundamental importance of the criminal defendant's constitutional right to be represented by counsel. By citing Geders in distinguishing between direct governmental interference with that right and denial of the right by virtue of counsel's ineffective assistance, Strickland made clear that the complete denial of the right by the government is not subject to the kind of prejudice analysis that is appropriate

Page 488 U. S. 273

in determining whether the quality of a lawyer's performance itself has been constitutionally ineffective. Pp. 488 U. S. 278-280.

2. However, the Federal Constitution does not compel a trial judge to allow a criminal defendant to confer with his attorney during a brief break in his testimony. It is an empirical predicate of our system of justice that, quite apart from any question of unethical "coaching," cross-examination of an uncounseled witness, whether the defendant or a nondefendant, following direct examination is more likely to lead to the discovery of truth than is cross-examination of a witness given time to pause and consult with his lawyer. Thus, although it may be appropriate to permit such consultation in individual cases, the trial judge must nevertheless be allowed the discretion to maintain the status quo during a brief recess in which there is a virtual certainty that any conversation between the witness and his lawyer would relate exclusively to his ongoing testimony. The long interruption in Geders was of a different character, because the normal consultation between attorney and client that occurs during an overnight recess would encompass matters that the defendant does have a constitutional right to discuss with his lawyer -- such as the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain -- and the fact that such discussions will inevitably include some consideration of the defendant's ongoing testimony does not compromise that basic right in that instance. Pp. 488 U. S. 280-285.

832 F.2d 837, affirmed.

STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, O'CONNOR, and SCALIA, JJ., joined, and in Parts I and III of which KENNEDY, J., joined. KENNEDY, J., filed an opinion concurring in part, post, p. 488 U. S. 285. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 488 U. S. 285.

JUSTICE STEVENS delivered the opinion of the Court.

In Geders v. United States,425 U. S. 80 (1976), we held that a trial court's order directing a defendant not to consult

Page 488 U. S. 274

his attorney during an overnight recess, called while the defendant was on the witness stand, violated his Sixth Amendment right to the assistance of counsel. Today we consider whether the Geders rule applies to a similar order entered at the beginning of a 15-minute afternoon recess.

I

Petitioner was tried and convicted by a jury of participating in a brutal murder, kidnaping, and sexual assault. His defense was that he had not taken an active part in the abduction or the homicide, and that his participation in the sexual assault was the product of duress. Evidence offered on his behalf indicated that he was mildly retarded, and that he was a nonviolent person who could be easily influenced by others. He took the stand and began to testify in his own defense after a lunch recess.

At the conclusion of his direct testimony, the trial judge declared a 15-minute recess, and, without advance notice to counsel, ordered that petitioner not be allowed to talk to anyone, including his lawyer, during the break. When the trial resumed, counsel moved for a mistrial. The judge denied the motion, explaining that petitioner

"was in a sense then a ward of the Court. He was not entitled to be cured or assisted or helped approaching his cross-examination."

App. 4-5.

The Supreme Court of South Carolina affirmed petitioner's conviction. State v. Perry, 278 S.C. 490, 299 S.E.2d 324 (1983). It concluded that Geders was not controlling, because our opinion in that case had emphasized the fact that a defendant would normally confer with counsel during an overnight recess, and that we had explicitly stated that "we do not deal with . . . limitations imposed in other circumstances." Geders v. United States, supra, at 91. The state court explained:

"We attach significance to the words 'normally confer.' Normally, counsel is not permitted to confer with his

Page 488 U. S. 275

defendant client between direct examination and cross-examination. Should counsel for a defendant, after direct examination, request the judge to declare a recess so that he might talk with his client before cross-examination begins, the judge would and should unhesitatingly deny the request."

278 S.C. at 491-494, 299 S.E.2d at 325-326.

Justice Ness dissented. He pointed out that a defendant would normally confer with his lawyer during a short routine recess, and therefore that Geders should apply. Moreover, in his opinion, the importance of protecting the defendant's fundamental right to the assistance of counsel far outweighs the negligible value of preventing the lawyer from "coaching" his or her client during a brief recess. [Footnote 1]

Thereafter, petitioner sought and obtained a federal writ of habeas corpus. Applying settled law in the Fourth Circuit,

Page 488 U. S. 276

the District Court held that, although a defendant has no right to be coached on cross-examination, he does have a right to counsel during a brief recess, and he need not demonstrate prejudice from the denial of that right in order to have his conviction set aside. App. 17-19; see United States v. Allen, 542 F.2d 630, 633-634 (CA4 1976), cert. denied, 430 U.S. 908 (1977); Stubbs v. Bordenkircher, 689 F.2d 1205, 1206-1207 (CA4 1982), cert. denied, 461 U.S. 907 (1983).

The Court of Appeals, sitting en banc, reversed. 832 F.2d 837 (1987). It agreed with the District Court that Geders applied and that constitutional error had occurred, but it concluded that petitioner's conviction should stand because the error was not prejudicial. This conclusion rested on the court's view that our opinions in United States v. Cronic,466 U. S. 648 (1984), and Strickland v. Washington,466 U. S. 668 (1984), implied that trial errors of this kind do not pose such a fundamental threat to a fair trial that reversal of a conviction should be automatic. After a review of the record, the Court of Appeals found that the evidence against petitioner was "overwhelming," 832 F.2d at 843, and that there was no basis for believing that his performance on cross-examination would have been different had he been given an opportunity to confer with his lawyer during the brief recess.

Four judges dissented. They argued that Geders had been properly interpreted in earlier Fourth Circuit cases to require automatic reversal, and that the majority's reliance on Strickland was misplaced, because the prejudice inquiry in that case was employed to determine whether a Sixth Amendment violation had occurred -- not to determine the consequences of an acknowledged violation. Moreover, they reasoned that the prejudice inquiry was particularly inappropriate in this context, because it would almost inevitably require a review of private discussions between client and lawyer.

Page 488 U. S. 277

Because the question presented by this case is not only important, but also one that frequently arises, [Footnote 2] we granted certiorari, 485 U.S. 976 (1988).

Page 488 U. S. 278

II

There is merit in petitioner's argument that a showing of prejudice is not an essential component of a violation of the

Page 488 U. S. 279

rule announced in Geders. In that case, we simply reversed the defendant's conviction without pausing to consider the extent of the actual prejudice, if any, that resulted from the defendant's denial of access to his lawyer during the overnight recess. That reversal was consistent with the view we have often expressed concerning the fundamental importance of the criminal defendant's constitutional right to be represented by counsel. [Footnote 3] See, e.g., United States v. Cronic, 466 U.S. at 466 U. S. 653-654; Chapman v. California,386 U. S. 18, 386 U. S. 23, n. 8 (1967); Gideon v. Wainwright,372 U. S. 335 (1963); Glasser v. United States,315 U. S. 60, 315 U. S. 76 (1942).

The disposition in Geders was also consistent with our later decision in Strickland v. Washington,466 U. S. 668 (1984), in which we considered the standard for determining whether counsel's legal assistance to his client was so inadequate that it effectively deprived the client of the protections guaranteed by the Sixth Amendment. In passing on such claims of "actual ineffectiveness,'" id. at 466 U. S. 686, the

"benchmark . . . must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result."

Ibid. More specifically, a defendant must show "that counsel's performance was deficient," and that "the deficient performance prejudiced the defense." Id. at 466 U. S. 687. Prior to our consideration of the standard for measuring the quality of the lawyer's work, however, we had expressly noted that direct governmental interference with the right to counsel is a different matter. Thus, we wrote:

Page 488 U. S. 280

"Government violates the right to effective assistance when it interferes in certain ways with the ability of counsel to make independent decisions about how to conduct the defense. See, e.g., Geders v. United States,425 U. S. 80 (1976) (bar on attorney-client consultation during the overnight recess); Herring v. New York,422 U. S. 853 (1975) (bar on summation at bench trial); Brooks v. Tennessee,406 U. S. 605, 406 U. S. 612-613 (1972) (requirement that defendant be first defense witness); Ferguson v. Georgia,365 U. S. 570, 365 U. S. 593-596 (1961) (bar on direct examination of defendant). Counsel, however, can also deprive a defendant of the right to effective assistance, simply by failing to render 'adequate legal assistance,' Cuyler v. Sullivan, 446 U.S. at 446 U. S. 344. Id. at 446 U. S. 345-350 (actual conflict of interest adversely affecting lawyer's performance renders assistance ineffective)."

Id. at 466 U. S. 686. Our citation of Geders in this context was intended to make clear that "[a]ctual or constructive denial of the assistance of counsel altogether," Strickland v. Washington, supra, at 466 U. S. 692, is not subject to the kind of prejudice analysis that is appropriate in determining whether the quality of a lawyer's performance itself has been constitutionally ineffective. See Penson v. Ohio, ante at 488 U. S. 88; United States v. Cronic, supra, at 466 U. S. 659, and n. 25. Thus, we cannot accept the rationale of the Court of Appeals' decision.

III

We are persuaded, however, that the underlying question whether petitioner had a constitutional right to confer with his attorney during the 15-minute break in his testimony -- a question that we carefully preserved in Geders -- was correctly resolved by the South Carolina Supreme Court. Admittedly, the line between the facts of Geders and the facts of this case is a thin one. It is, however, a line of constitutional dimension. Moreover, contrary to the views expressed by

Page 488 U. S. 281

the dissenting member of the South Carolina Supreme Court, seen 1, supra, it is not one that rests on an assumption that trial counsel will engage in unethical "coaching."

The distinction rests instead on the fact that, when a defendant becomes a witness, he has no constitutional right to consult with his lawyer while he is testifying. He has an absolute right to such consultation before he begins to testify, but neither he nor his lawyer has a right to have the testimony interrupted in order to give him the benefit of counsel's advice.

The reason for the rule is one that applies to all witnesses -- not just defendants. It is a common practice for a judge to instruct a witness not to discuss his or her testimony with third parties until the trial is completed. [Footnote 4] Such nondiscussion orders are a corollary of the broader rule that witnesses may be sequestered to lessen the danger that their testimony will be influenced by hearing what other witnesses have to say, and to increase the likelihood that they will confine

Page 488 U. S. 282

themselves to truthful statements based on their own recollections. [Footnote 5] The defendant's constitutional right to confront the witnesses against him immunizes him from such physical sequestration. [Footnote 6] Nevertheless, when he assumes the role of a witness, the rules that generally apply to other witnesses -- rules that serve the truth-seeking function of the trial -- are generally applicable to him as well. Accordingly, it is entirely appropriate for a trial judge to decide, after listening to the direct examination of any witness, whether the defendant or a nondefendant, that cross-examination is more likely to elicit truthful responses if it goes forward without allowing the witness an opportunity to consult with third parties, including his or her lawyer.

In other words, the truth-seeking function of the trial can be impeded in ways other than unethical "coaching." Cross-examination often depends for its effectiveness on the ability of counsel to punch holes in a witness' testimony at just the right time, in just the right way. Permitting a witness, including a criminal defendant, to consult with counsel after direct examination, but before cross-examination, grants the witness an opportunity to regroup and regain a poise and sense of strategy that the unaided witness would not possess. This is true even if we assume no deceit on the part of the witness; it is simply an empirical predicate of our system of adversary, rather than inquisitorial, justice that cross-examination of a witness who is uncounseled between direct examination and cross-examination is more likely to lead to the discovery of truth than is cross-examination of a witness who is given time to pause and consult with his attorney.

Page 488 U. S. 283

"Once the defendant places himself at the very heart of the trial process, it only comports with basic fairness that the story presented on direct is measured for its accuracy and completeness by uninfluenced testimony on cross-examination."

United States v. DiLapi, 651 F.2d 140, 16, 1 (CA2 1981) (Mishler, J., concurring), cert. denied, 455 U.S. 938 (1982). [Footnote 7]

Thus, just as a trial judge has the unquestioned power to refuse to declare a recess at the close of direct testimony -- or at any other point in the examination of a witness -- we think the judge must also have the power to maintain the status quo during a brief recess in which there is a virtual certainty

Page 488 U. S. 284

that any conversation between the witness and the lawyer would relate to the ongoing testimony. As we have said, we do not believe the defendant has a constitutional right to discuss that testimony while it is in process.

The interruption in Geders was of a different character, because the normal consultation between attorney and client that occurs during an overnight recess would encompass matters that go beyond the content of the defendant's own testimony -- matters that the defendant does have a constitutional right to discuss with his lawyer, such as the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain. 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. See Geders v. United States, 425 U.S. at 425 U. S. 88. 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.

Our conclusion does not mean that trial judges must forbid consultation between a defendant and his counsel during such brief recesses. As a matter of discretion in individual cases, or of practice for individual trial judges, or indeed, as a matter of law in some States, it may well be appropriate to permit such consultation. [Footnote 8] We merely hold that the Federal Constitution does not compel every trial judge to allow the defendant to consult with his lawyer while his testimony is in

Page 488 U. S. 285

progress if the judge decides that there is a good reason to interrupt the trial for a few minutes.

The judgment of the Court of Appeals is

Affirmed.

[Footnote 1]

"I agree with the Fourth Circuit decision in United States v. Allen, [542 F.2d 630 (1976), cert. denied, 430 U.S. 908 (1977)], which held the Sixth Amendment right to counsel is so fundamental that it should never be interfered with for any length of time, absent some compelling reason. See also Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir.1982) [,cert. denied, 461 U.S. 907 (1983)]. To allow defendants to be deprived of counsel during court-ordered recesses is to assume the worst of our system of criminal justice, i.e., that defense lawyers will urge their clients to lie under oath. I am unwilling to make so cynical an assumption, it being my belief that the vast majority of lawyers take seriously their ethical obligations as officers of the court."

"Even if that assumption is to be made, the Geders opinion pointed out that opposing counsel and the trial judge are not without weapons to combat the unethical lawyer. The prosecutor is free to cross-examine concerning the extent of any 'coaching,' or the trial judge may direct the examination to continue without interruption until completed. Additionally, as noted in Allen, a lawyer and client determined to lie will likely invent and polish the story long before trial; thus, the State benefits little from depriving a defendant of counsel during short recesses."

"I think the Sixth Amendment right to counsel far outweighs the negligible value of restricting that right for a few minutes during trial."

State v. Perry, 278 S.C. 490, 495-497, 299 S.E.2d 324, 327-328 (1983) (dissenting opinion).

[Footnote 2]

Federal and state courts since Geders have expressed varying views on the constitutionality of orders barring a criminal defendant's access to his or her attorney during a trial recess. See Sanders v. Lane, 861 F.2d 1033 (CA7 1988) (denial of access to counsel during lunchtime recess while defendant still on witness stand violation of the Sixth Amendment without consideration of prejudice, but error held harmless); Bova v. Dugger, 858 F.2d 1539, 1540 (CA11 1988) (15-minute recess "sufficiently long to permit meaningful consultation between defendant and his counsel," and therefore bar on attorney-defendant discussion constitutional violation even though defendant on stand during cross-examination); Crutchfield v. Wainwright, 803 F.2d 1103 (CA11 1986) (en banc) (6 of 12 judges hold that, if defendant or counsel indicates, on the record, a desire to confer during a recess, then any denial of consultation is a per se constitutional violation; 5 judges hold that restriction on discussion with counsel regarding testimony during brief recess near end of direct examination when no objection was raised does not constitute constitutional violation; 1 judge holds that a violation may exist if defendant and counsel actually desired to confer, but then prejudice need be shown to gain postconviction relief), cert. denied, 483 U.S. 1008 (1987); Mudd v. United States, 255 U.S.App.D.C. 78, 79-83, 798 F.2d 1509, 1510-1514 (1986) (order permitting defense counsel to speak with client about all matters other than client's testimony during weekend recess while client on stand per se Sixth Amendment violation); United States v. Romano, 736 F.2d 1432, 1435-1439 (CA11 1984) (Sixth Amendment violation when judge barred attorney-defendant discussion only regarding defendant's testimony during 5-day recess), vacated in part on other grounds, 755 F.2d 1401 (CA11 1985); United States v. Vasquez, 732 F.2d 846, 847-848 (CA11 1984) (refusing to adopt rule "that counsel may interrupt court proceedings at any time to confer with his or her client about a matter in the case," thus affirming denial of counsel's request to consult with client during court's sidebar explanation to counsel); Stubbs v. Bordenkircher, 689 F.2d 1205, 1206-1207 (CA4 1982) (denial of access to counsel during lunch recess while defendant on stand constitutionally impermissible, but no deprivation of right to counsel here because no showing that defendant desired to consult with attorney and would have done so but for the restriction), cert. denied, 461 U.S. 907 (1983); Bailey v. Redman, 657 F.2d 21, 22-25 (CA3 1981) (no deprivation of right to counsel from order barring defendant from discussing ongoing testimony with anyone during overnight recess because no objection and no showing that defendant would have conferred with counsel but for order), cert. denied, 454 U.S. 1153 (1982); United States v. DiLapi, 651 F.2d 140, 147-149 (CA2 1981) (denial of access to counsel during 5-minute recess while defendant on stand Sixth Amendment violation, but nonprejudicial in this case), cert. denied, 455 U.S. 938 (1982); 651 F.2d at 149-151 (Mishler, J., concurring) (no Sixth Amendment right to consult with attorney during cross-examination; instead, Fifth Amendment's due process requirements should govern whether such denial of access to counsel rendered trial unfair); United States v. Conway, 632 F.2d 641, 643-645 (CA5 1980) (denial of access to counsel during lunch recess while defendant on stand violation of right to effective assistance of counsel); United States v. Bryant, 545 F.2d 1035, 1036 (CA6 1976) (denial of access to counsel during lunch recess while defendant on stand violation of right to counsel); United States v. Allen, 542 F.2d 630, 632-634 (CA4 1976) ("[A] restriction on a defendant's right to consult with his attorney during a brief routine recess is constitutionally impermissible," even while defendant is still on stand), cert. denied, 430 U.S. 908 (1977); Ashurst v. State, 424 So.2d 691, 691-693 (Ala.Crim.App.1982) (bar on defendant's access to attorney during defendant's testimony, including all breaks and recesses, violates right to counsel); State v. Mebane, 204 Conn.585, 529 A.2d 680 (1987) (denial of access to counsel during 21-minute recess while defendant on stand per se error), cert. denied, 484 U.S. 1046-1047 (1988); Bailey v. State, 422 A.2d 956, 957-964 (Del.1980) (order forbidding defendant from discussing testimony with anyone during overnight recess, not objected to, not error, and if error, harmless); McFadden v. State, 424 So.2d 918, 919-920 (Fla.App.1982) (error by instructing counsel not to discuss defendant's ongoing testimony with him over holiday recess, but error held harmless because judge gave attorney ample opportunity to meet with defendant before proceeding to trial after recess); Bova v. State, 410 So.2d 1343, 1345 (Fla.1982) (denial of access to counsel during 15-minute break during cross-examination of defendant violation of Sixth Amendment, but harmless error); People v. Stroner, 104 Ill.App.3d 1, 5-6, 432 N.E.2d 348, 351 (1982) (no violation of right to counsel when judge barred defendant from discussing testimony, but permitted other contact with attorney, during 30-minute recess while defendant on stand), aff'd in part and rev'd in part on other grounds, 96 Ill.2d 204, 449 N.E.2d 1326 (1983); Wooten-Bey v. State, 76 Md.App. 603, 607-616, 547 A.2d 1086, 1088-1092 (1988) (order denying defendant consultation with counsel concerning ongoing testimony during lunch break error, but error cured by judge's permitting discussion with counsel and opportunity for further redirect after defendant left stand); People v. Hagen, 86 App.Div.2d 617, 446 N.Y.S.2d 91 (1982) (Sixth Amendment violation when judge barred still-testifying defendant from discussing testimony with attorney during overnight recess).

[Footnote 3]

See U.S.Const., Amdt. 6 ("In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence").

[Footnote 4]

See, e.g., Jerry Parks Equipment Co. v. Southeast Equipment Co., 817 F.2d 340, 342-343 (CA5 1987) (improper discussion of case by defense witness with defense counsel); United States v. Greschner, 802 F.2d 373, 375-376 (CA10 1986) (circumvention of sequestration order where "witnesses indirectly defeat its purpose by discussing testimony they have given and events in the courtroom with other witnesses who are to testify"), cert. denied, 480 U.S. 908 (1987); United States v. Johnston, 578 F.2d 1352, 1355 (CA10) (exclusion of witnesses from courtroom a "time-honored practice designed to prevent the shaping of testimony by hearing what other witnesses say"; judge should avoid circumvention of rule by "making it clear that witnesses are not only excluded from the courtroom, but also that they are not to relate to other witnesses what their testimony has been and what occurred in the courtroom"), cert. denied, 439 U.S. 931 (1978); Milanovich v. United States, 275 F.2d 716, 720 (CA4 1960) ("[O]rdinarily, when a judge exercises his discretion to exclude witnesses from the courtroom, it would seem proper for him to take the further step of making the exclusion effective to accomplish the desired result of preventing the witnesses from comparing the testimony they are about to give. If witnesses are excluded, but not cautioned against communicating during the trial, the benefit of the exclusion may be largely destroyed"), aff'd in part and set aside in part on other grounds,365 U. S. 551 (1961).

[Footnote 5]

See, e.g., 6 J. Wigmore, Evidence §§ 1837-1838 (J. Chadbourn rev. 1976 and Supp.1988); Fed.Rule of Evid. 615, "Exclusion of Witnesses."

[Footnote 6]

See U.S.Const., Amdt. 6 ("In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him"); see also, e.g., Coy v. Iowa,487 U. S. 1012, 487 U. S. 1016 (1988) ("We have never doubted . . . that the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact").

[Footnote 7]

See United States v. DiLapi, 651 F.2d at 149-151 (Mishler, J., concurring) (emphasis in original):

"[W]e must also account for the function of cross-examination in the trial process in construing the Sixth Amendment guarantee of counsel."

" The age-old tool for ferreting out truth in the trial process is the right to cross-examination. 'For two centuries past, the policy of the Anglo-American system of evidence has been to regard the necessity of testing by cross-examination as a vital feature of the law.'"

"5 Wigmore, Evidence § 1367 (Chadbourn rev.1974). The importance of cross-examination to the English judicial system, and its continuing importance since the inception of our judicial system in testing the facts offered by the defendant on direct, . . . suggests that the right to assistance of counsel did not include the right to have counsel's advice on cross-examination."

"The Court has consistently acknowledged the vital role of cross-examination in the search for truth. It has recognized that the defendant's decision to take the stand, and to testify on his own behalf, places into question his credibility as a witness, and that the prosecution has the right to test his credibility on cross-examination. . . . Once the defendant places himself at the very heart of the trial process, it only comports with basic fairness that the story presented on direct is measured for its accuracy and completeness by uninfluenced testimony on cross-examination."

Cf. 5 J. Wigmore, Evidence § 1367 (J. Chadbourn rev.1974) (calling cross-examination "the greatest legal engine ever invented for the discovery of truth"); 4 J. Weinstein, Evidence

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