author:
Justice Marshall Justice Stevens, Justice O’Connor,
      Justice Scalia,

text:
    GOLDBERG et al. v. SWEET, DIRECTOR, ILLINOIS DEPARTMENT OF REVENUE, et al.
    No. 87-826.
    Argued October 12, 1988
    Decided January 10, 1989

      Walter A. Smith, Jr., argued the cause for appellants. With him on the briefs for appellants Goldberg et al. were John G. Roberts, Jr., John G. Jacobs, and William G. Clark,

      Jr. Laura DiGiantonio, Richard N. Wiley, and Robert L. Weinberg filed briefs for appellant GTE Sprint Communications Corp.

      Andrew L. Frey argued the cause for appellees. On the brief were Neil F. Hartigan, Attorney General of Illinois, Robert J. Ruiz, Solicitor General, Terry F. Moritz, Special. Assistant Attorney General, and Alan P. Solow.

      Together with No. 87-1101, GTE Sprint Communications Corp. v. Sweet, Director, Illinois Department of Revenue, et al., also on appeal from the same court.

        William C. Lane filed a brief for the National Taxpayers Union as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed for the National Conference of State Legislatures et al. by Benna Ruth Solomon, Joyce Holmes Benjamin, James F. Flug, and Martin Lobel; and for MCI Telecommunications Corp. by Frederic S. Lane, William T. Barker, and Walter Nagel.

   Justice Marshall

delivered the opinion of the Court.

In this appeal, we must decide whether a tax on interstate telecommunications imposed by the State of Illinois violates the Commerce Clause. We hold that it does not.

I

A

These cases come to us against a backdrop of massive technological and legal changes in the telecommunications industry. Years ago, all interstate telephone calls were relayed through electric wires and transferred by human operators working switchboards. Those days are past. Today, a computerized network of electronic paths transmits thousands of electronic signals per minute through a complex system of microwave radios, fiber optics, satellites, and cables. DOJ Report 1.2-1.6, 1.8; Brief for MCI Telecommunications Corporation as Amicus Curiae 2. When fully connected, this network offers billions of paths from one point to another. DOJ Report 1.18. When a direct path is full or not working efficiently, the computer system instantly activates another path. Signals may even change paths in the middle of a telephone call without perceptible interruption. Brief for National Conference of State Legislatures et al. as Amici Curiae 6. Thus, the path taken by the electronic signals is often indirect and typically bears no relation to state boundaries. The number of possible paths, the nature of the electronic signals, and the system of computerized switching make it virtually impossible to trace and record the actual paths taken by the electronic signals which create an individual telephone call.

The explosion in new telecommunications technologies and the breakup of the AT&T monopoly has led a number of States to revise the taxes they impose on the telecommunications industry. In 1985, Illinois passed the Illinois Telecommunications Excise Tax Act (Tax Act), 111. Rev. Stat., ch. 120, ¶¶2001-2021 (1987). The Tax Act imposes a 5% tax on the gross charge of interstate telecommunications (1) originated or terminated in Illinois, ¶ 2004, § 4 (hereinafter §4) and (2) charged to an Illinois service address, regardless of where the telephone call is billed or paid. ¶2002, §§2(a) and (b). The Tax Act imposes an identical 5% tax on intrastate telecommunications. ¶2003, §3. In order to prevent “actual multi-state taxation,” the Tax Act provides a credit to any taxpayer upon proof that the taxpayer has paid a tax in another State on the same telephone call which triggered the Illinois tax. ¶2004, § 4. To facilitate collection, the Tax Act requires telecommunications retailers, like appellant GTE Sprint Communications Corporation (Sprint), to collect the tax from the consumer who charged the call to his service address. ¶2005, §5.

B

Eight months after the Tax Act was passed, Jerome Goldberg and Robert McTigue, Illinois residents who are subject to and have paid telecommunications taxes through their retailers, filed a class action complaint in the Circuit Court of Cook County, Illinois. They named as defendants J. Thomas Johnson, Director of the Department of Revenue for the State of Illinois, (Director), and various long-distance telephone carriers, including Sprint. The complaint alleged that §4 of the Tax Act violates the Commerce Clause of the United States Constitution. Sprint cross-claimed against the Director, seeking a declaration that the Tax Act is unconstitutional under the Commerce Clause. The Director then filed a motion for summary judgment against Sprint and the other long-distance carriers. Sprint responded with a motion for summary judgment against the Director; Goldberg and McTigue, in turn, filed their own motion for summary judgment against both the Director and Sprint.

After briefing and a hearing, the trial court declared § 4 unconstitutional. It found that Complete Auto Transit, Inc. v. Brady, 430 U. S. 274 (1977), and its progeny control this litigation. Under the four-pronged test originated in Complete Auto, a state tax will withstand scrutiny under the Commerce Clause if “the tax is applied to an activity with a substantial nexus with the taxing State, is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to the services provided by the State.” Id., at 279. In the view of the trial court, the Tax Act did not satisfy the last three prongs of the Complete Auto test because:

“Illinois is attempting to tax the entire cost of an interstate act which takes place only partially in Illinois. This tax by its own terms is not fairly apportioned. It discriminates against interstate commerce and it is not related to services provided in Illinois. For all of these reasons the Act must fail.” Goldberg v. Johnson, No. 85 CH 8081 (Cook County, Oct. 21, 1986), App. to Juris. Statement in No. 87-826, p. 24a.

The Illinois Supreme Court reversed, Goldberg v. Johnson, 117 Ill. 2d 493, 512 N. E. 2d 1262 (1987) (per curiam) despite its finding that the tax is “not an apportioned tax” because it “applies to the entirety of each and every interstate telecommunication.” Id., at 501, 512 N. E. 2d, at 1266. The court reasoned that an unapportioned tax is “constitutionally suspect” because of the risk of multiple taxation, ibid., but decided that the Tax Act adequately avoided this danger. With respect to interstate calls originating in Illinois, the court noted that no other State could levy a tax on such calls. Id., at 502, 512 N. E. 2d, at 1266. As for calls terminating in Illinois and charged to an Illinois service address, the court found that even though the tax created “a real risk of multiple taxation,” id., at 502, 512 N. E. 2d, at 1267, that risk was eliminated by §4’s credit provision. Id., at 503, 512 N. E. 2d, at 1267.

As for discrimination, the third prong of the Complete Auto test, the court held that the Tax Act is constitutionally valid since a 5% tax is imposed on intrastate as well as interstate telecommunications. Turning to the fourth prong, the court held that the tax is fairly related to services provided by Illinois. The court explained that Illinois provided services and other benefits with respect to that portion of an interstate call occurring within the State, and that “the benefits afforded by other States in facilitating the same interstate telecommunication are too speculative to override the substantial benefits extended by Illinois.” Id., at 504, 512 N. E. 2d, at 1267.

Having found that the Tax Act satisfied the requirements of Complete Auto, the Illinois Supreme Court concluded that it did not violate the Commerce Clause. Sprint, Goldberg, and McTigue appealed to this Court. We noted probable jurisdiction, 484 U. S. 1057 (1988), and now affirm.

II

A

This Court has frequently had occasion to consider whether state taxes violate the Commerce Clause. The wavering doctrinal lines of our pre-Complete Auto cases reflect the tension between two competing concepts: the view that interstate commerce enjoys a “free trade” immunity from state taxation; and the view that businesses engaged in interstate commerce may be required to pay their own way. Complete Auto, supra, at 278-279; see also American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266, 281, 282, nn. 12, 13 (1987); Commonwealth Edison Co. v. Montana, 453 U. S. 609, 645 (1981) (Blackmun, J., dissenting). Complete Auto sought to resolve this tension by specifically rejecting the view that the States cannot tax interstate commerce, while at the same time placing limits on state taxation of interstate commerce. 430 U. S., at 288; see also Commonwealth Edison Co., supra, at 645. Since the Complete Auto decision we have applied its four-pronged test on numerous occasions. We now apply it to the Illinois tax.

B

As all parties agree that Illinois has a substantial nexus with the interstate telecommunications reached by the Tax Act, we begin our inquiry with apportionment, the second prong of the Complete Auto test. Appellants argue that the telecommunications tax is not fairly apportioned because Illinois taxes the gross charge of each telephone call. They interpret our prior cases, specifically Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U. S. 157 (1954), Central Greyhound Lines, Inc. v. Mealey, 334 U. S. 653 (1948), and Western Live Stock v. Bureau of Revenue, 303 U. S. 250 (1938), to require Illinois to tax only a fraction of the gross charge of each telephone call based on the miles which the electronic signals traveled within Illinois as a portion of the total miles traveled. The Director, in turn, argues that Illinois apportions its telecommunications tax by carefully limiting the type of interstate telephone calls which it reaches.

In analyzing these contentions, we are mindful that the central purpose behind the apportionment requirement is to ensure that each State taxes only its fair share of an interstate transaction. See, e. g., Container Corp. of America v. Franchise Tax Bd., 463 U. S. 159, 169 (1983). But “we have long held that the Constitution imposes no single [apportionment] formula on the States,” id., at 164, and therefore have declined to undertake the essentially legislative task of establishing a “single constitutionally mandated method of taxation.” Id., at 171; see also Moorman Mfg. Co. v. Bair, 437 U. S. 267, 278-280 (1978). Instead, we determine whether a tax is fairly apportioned by examining whether it is internally and externally consistent. Scheiner, supra, at 285; Armco Inc. v. Hardesty, 467 U. S. 638, 644 (1984); Container Corp., supra, at 169-170.

To be internally consistent, a tax must be structured so that if every State were to impose an identical tax, no multiple taxation would result. 463 U. S., at 169. Thus, the internal consistency test focuses on the text of the challenged statute and hypothesizes a situation where other States have passed an identical statute. We conclude that the Tax Act is internally consistent, for if every State taxed only those interstate phone calls which are charged to an in-state service address, only one State would tax each interstate telephone call.

Appellant Sprint argues that our decision in Armco dictates a different standard. It contends that, under Armco, a court evaluating the internal consistency of a challenged tax must also compare the tax to the similar, but not identical, taxes imposed by other States. Sprint misreads Armco. If we were to determine the internal consistency of one State’s tax by comparing it with slightly different taxes imposed by other States, the validity of state taxes would turn solely on “the shifting complexities of the tax codes of 49 other States.” Armco, supra, at 645; see also Moorman, supra, at 277, n. 12. In any event, to the extent that other States have passed tax statutes which create a risk of multiple taxation, we reach that issue under the external consistency test, to which we now turn.

The external consistency test asks whether the State has taxed only that portion of the revenues from the interstate activity which reasonably reflects the in-state component of the activity being taxed. Container Corp., supra, at 169-170. We thus examine the in-state business activity which triggers the taxable event and the practical or economic effect of the tax on that interstate activity. Appellants first contend that any tax assessed on the gross charge of an interstate activity cannot reasonably reflect in-state business activity and therefore must be unapportioned. The Director argues that, because the Tax Act has the same economic effect as a sales tax, it can be based on the gross charge of the telephone call. See, e. g., McGoldrick v. Berwind-White Coal Mining Co., 309 U. S. 33, 58 (1940) (sales tax); cf. D. H. Holmes Co. v. McNamara, 486 U. S. 24, 31-32 (1988) (use tax); Tyler Pipe Industries, Inc. v. Washington Dept. of Revenue, 483 U. S. 232, 251 (1987) (gross receipts).

We believe that the Director has the better of this argument. The tax at issue has many of the characteristics of a sales tax. It is assessed on the individual consumer, collected by the retailer, and accompanies the retail purchase of an interstate telephone call. Even though such a retail purchase is not a purely local event since it triggers simultaneous activity in several States, cf. McGoldrick, supra, at 58, the Tax Act reasonably reflects the way that consumers purchase interstate telephone calls.

The Director further contends that the Illinois telecommunications tax is fairly apportioned because the Tax Act reaches only those interstate calls which are (1) originated or terminated in Illinois and (2) charged to an Illinois service address. Appellants Goldberg and McTigue, by contrast, raise the specter of many States assessing a tax on the gross charge of an interstate telephone call. Appellants have exaggerated the extent to which the Tax Act creates a risk of multiple taxation. We doubt that States through which the telephone call’s electronic signals merely pass have a sufficient nexus to tax that call. See United Air Lines, Inc. v. Mahin, 410 U. S. 623, 631 (1973) (State has no nexus to tax an airplane based solely on its flight over the State); Northwest Airlines, Inc. v. Minnesota, 322 U. S. 292, 302-304 (1944) (Jackson, J., concurring) (same). We also doubt that termination of an interstate telephone call, by itself, provides a substantial enough nexus for a State to tax a call. See National Bellas Hess, Inc. v. Department of Revenue of Illinois, 386 U. S. 753 (1967) (receipt of mail provides insufficient nexus).

We believe that only two States have a nexus substantial enough to tax a consumer’s purchase of an interstate telephone call. The first is a State like Illinois which taxes the origination or termination of an interstate telephone call charged to a service address within that State. The second is a State which taxes the origination or termination of an interstate telephone call billed or paid within that State. See, e. g., Ark. Code Ann. §26-52-301(3) (Supp. 1987); Wash. Rev. Code §82.04.065(2) (1987).

We recognize that, if the service address and billing location of a taxpayer are in different States, some interstate telephone calls could be subject to multiple taxation. This limited possibility of multiple taxation, however, is not sufficient to invalidate the Illinois statutory scheme. See Container Corp., 463 U. S., at 171; Moorman, 437 U. S., at 272-273. To the extent that other States’ telecommunications taxes pose a risk of multiple taxation, the credit provision contained in the Tax Act operates to avoid actual multiple taxation. D. H. Holmes, supra, at 31 (“The . . . taxing scheme is fairly apportioned, for it provides a credit against its use tax for sales taxes that have been paid in other States”); see also Tyler Pipe, supra, at 245, n. 13.

It should not be overlooked, moreover, that the external consistency test is essentially a practical inquiry. In previous cases we have endorsed apportionment formulas based upon the miles a bus, train, or truck traveled within the taxing State. But those cases all dealt with the movement of large physical objects over identifiable routes, where it was practicable to keep track of the distance actually traveled within the taxing State. See, e. g., Central Greyhound, 334 U. S., at 663 (“There is no dispute as to feasibility in apportioning this tax”); see also Western Live Stock, 303 U. S., at 257. These cases, by contrast, involve the more intangible movement of electronic impulses through computerized networks. An apportionment formula based on mileage or some other geographic division of individual telephone calls would produce insurmountable administrative and technological barriers. See Scheiner, 483 U. S., at 296 (apportionment does not require State to adopt a tax which would “pose genuine administrative burdens”). We thus find it significant that Illinois’ method of taxation is a realistic legislative solution to the technology of the present-day telecommunications industry.

In sum, we hold that the Tax Act is fairly apportioned. Its economic effect is like that of a sales tax, the risk of multiple taxation is low, and actual multiple taxation is precluded by the credit provision. Moreover, we conclude that mileage or some other geographic division of individual telephone calls would be infeasible.

C

We turn next to the third prong of the Complete Auto test, which prohibits a State from imposing a discriminatory tax on interstate commerce. Appellants argue that irrespective of the identical 5% tax on the gross charge of intrastate telephone calls, the Tax Act discriminates against interstate commerce by allocating a larger share of the tax burden to interstate telephone calls. They rely on Schemer, where we stated that, “[i]n its guarantee of a free trade area among the States, . . . thé Commerce Clause has a.deeper meaning that may be implicated even though state provisions ... do not allocate tax burdens between insiders and outsiders in a manner that is facially discriminatory.” Scheiner, supra, at 281.

In Scheiner, we held that Pennsylvania’s flat taxes on the operation of all trucks on Pennsylvania highways imposed a disproportionate burden on interstate trucks, as compared with intrastate trucks, because the interstate trucks traveled fewer miles per year on Pennsylvania highways. 483 U. S., at 286. The Illinois tax differs from the flat taxes found discriminatory in Scheiner in two important ways. First, whereas Pennsylvania’s flat taxes burdened out-of-state truckers who would have difficulty effecting legislative change, the economic burden of the Illinois telecommunications tax falls on the Illinois telecommunications consumer, the insider who presumably is able to complain about and change the tax through the Illinois political process. It is not a purpose of the Commerce Clause to protect state residents from their own state taxes.

Second, whereas with Pennsylvania’s flat taxes it was possible to measure the activities within the State because truck mileage on state highways could be tallied, reported, and apportioned, the exact path of thousands of electronic signals can neither be traced nor recorded. We therefore conclude that the Tax Act does not discriminate in favor of intrastate commerce at the expense of interstate commerce.

D

Finally, we reach the fourth prong of the Complete Auto test, namely, whether the Illinois tax is fairly related to the presence and activities of the taxpayer within the State. See D. H. Holmes, 486 U. S., at 32-34. The purpose of this test is to ensure that a State’s tax burden is not placed upon persons who do not benefit from services provided by the State. Commonwealth Edison, 453 U. S., at 627.

Appellants would severely limit this test by focusing solely on those services which Illinois provides to telecommunications equipment located within the State. We cannot accept this view. The tax which may be imposed on a particular interstate transaction need not be limited to the cost of the services incurred by the State on account of that particular activity. Id., at 627, n. 16. On the contrary, “interstate commerce may be required to contribute to the cost of providing all governmental services, including those services from which it arguably receives no direct ‘benefit.’” Ibid. (emphasis in original). The fourth prong of the Complete Aldo test thus focuses on the wide range of benefits provided to the taxpayer, not just the precise activity connected to the interstate activity at issue. Indeed, last Term, in D. H. Holmes, supra, at 32, we noted that a taxpayer’s receipt of police and fire protection, the use of public roads and mass transit, and the other advantages of civilized society satisfied the requirement that the tax be fairly related to benefits provided by the State to the taxpayer.

In light of the foregoing, we have little difficulty concluding that the Tax Act is fairly related to the benefits received by Illinois telephone consumers. The benefits that Illinois provides cannot be limited to those exact services provided to the equipment used during each interstate telephone call. Illinois telephone consumers also subscribe to telephone service in Illinois, own or rent telephone equipment at an Illinois service address, and receive police and fire protection as well as the other general services provided by the State of Illinois.

Ill

For the reasons stated above, we hold that the telecommunications tax imposed by the Tax Act is consistent with the Commerce Clause. It is fairly apportioned, does not discriminate against interstate commerce, and is fairly related to services which the State of Illinois provides to the taxpayer. The judgment of the Illinois Supreme Court is hereby

Affirmed.

Justice Stevens,

concurring in part and concurring in the judgment.

My reasons for concluding that the Illinois tax does not discriminate against interstate commerce are different from those expressed in Part II-C of the Court’s opinion. Unlike the Court, I do not believe Illinois may discriminate among its own residents by placing a heavier tax on those who engage in interstate commerce than on those who merely engage in local commerce. See ante, at 266 (“It is not a purpose of the Commerce Clause to protect state residents from their own state taxes”). In fact, such a holding is a clear departure from our precedents. See, e. g., Tyler Pipe Industries, Inc. v. Washington Dept. of Revenue, 483 U. S. 232, 240-248 (1987) (invalidating manufacturing tax that discriminated between in-state manufacturers that sold at wholesale in state and those that sold at wholesale out of state); Bacchus Imports, Ltd. v. Dias, 468 U. S. 263 (1984) (invalidating tax exemption for locally produced alcoholic beverages in case brought by local wholesalers); Boston Stock Exchange v. State Tax Comm’n, 429 U. S. 318, 333-334 (1977) (invalidating securities transfer tax that discriminated against those state residents who sold out of state rather than in state). Surely a state tax of 3% on the shipment of goods intrastate and of 5% on the shipment of goods interstate would violate the Commerce Clause.

Appellants’ discrimination claim can best be illustrated by example: A call originating and terminating in Illinois that costs $10 is taxed at full value at 5%. A second call, originating in Illinois but terminating in Indiana, costs the same $10 and is taxed at the same full value at the same 5% rate. But while Illinois may properly tax the entire $10 of the first call, it (technically) may tax only that portion of the second call over which it has jurisdiction, namely, the intrastate portion of the call (say, for example, $5). By imposing an identical 500 tax on the two calls, Illinois has imposed a disproportionate economic burden on the interstate call. See American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266 (1987) (invalidating flat tax that imposed disproportionate economic burden on interstate commerce).

This argument, however, overlooks the true overall incidence of the Illinois tax. Although Illinois taxes the entirety of every call charged to an Illinois number, it does not tax any part of the calls that are received at an Illinois number but charged elsewhere. Thus, although Illinois taxes the entire Illinois-Indiana $10 call, it taxes no part of the reciprocal Indiana-Illinois $10 call. At the 5% rate, Illinois receives 500 from the two calls combined, precisely the amount it receives from one $10 purely intrastate call. By taxing half of the relevant universe of interstate calls at full value, Illinois achieves the same economic result as taxing all of those calls at half value would achieve.. As a result, interstate phone calls are taxed at a lower effective rate than intrastate calls, and accordingly bear a proportional tax burden.

With the exception of Part II-C, I join the Court’s opinion.

Justice O’Connor,

concurring in part and concurring in the judgment.

1 agree that the Illinois Telecommunications Excise Tax Act does not violate the Commerce Clause, and join Parts I, II-A, II-D, and III of the Court’s opinion. I write separately to explain why I do not join Parts II-B and II-C. First, I am still unsure of the need and authority for applying the internal consistency test to state taxes challenged under the Commerce Clause. See American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266, 303 (1987) (O’Connor, J., dissenting). I therefore do not join in the Court’s application of that test to the Tax Act. Ante, at 261. Second, I agree with Justice Stevens that a State may not discriminate among its own residents by placing a heavier tax on those who engage in interstate commerce than those who merely engage in local commerce. Ante, at 268 (Stevens, J., concurring in part and concurring in judgment). Accordingly, I cannot join the Court’s statement that “[i]t is not a purpose of the Commerce Clause to protect state residents from their own state taxes.” Ante, at 266.

Justice Scalia,

concurring in the judgment.

I remain of the view that only state taxes that facially discriminate against interstate commerce violate the negative Commerce Clause, see Tyler Pipe Industries, Inc. v. Washington Dept. of Revenue, 483 U. S. 232, 254 (1987) (Scalia, J., concurring in part and dissenting in part); American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266, 303 (1987) (Scalia, J., dissenting). Because the Illinois Telecommunications Excise Tax is assessed upon intrastate and interstate calls at precisely the same rate, it poses no constitutional difficulty.

      See, e. g., U. S. Dept, of Justice, The Geodesic Network: 1987 Report on Competition in the Telephone Industry (hereinafter DOJ Report) (discussing technological changes); Connecticut General Assembly, Final Report of the Connecticut Telecommunications Task Force, Finance, Revenue and Bonding Committee (1985) (discussing legal and technological changes); Council of State Policy & Planning Agencies, K. Case, State Tax Policy and the Telecommunications Industry, in The Challenge of Telecommunications State Regulatory and Tax Policies for a New Industry 33 (B. Dyer ed. 1986) (discussing changes in state taxation policies).

       A signal traveling from one microwave tower to another may pass through a State but never touch anything in it. A satellite transmission may leave a caller’s building, travel to outer space, and remain there until it is received by a satellite dish at the building housing the receiving party. Brief for National Conference of State Legislatures et al. as Amici Curiae 6.

      See United States v. American Tel. & Tel. Co., 552 F. Supp. 131 (DC 1982), summarily aff’d sub nom. Maryland v. United States, 460 U. S. 1001 (1983).

         See, e. g., Ark. Code Ann. §26-52-301 (Supp. 1987); Fla. Stat. §212.05(l)(e) (Supp. 1988); Haw. Rev. Stat. §237-13(6) (Supp. 1987); Minn. Stat. §297A.01 Subd. 3(f) (Supp. 1987); N. M. Stat. Ann. §7-9-56(C) (Supp. 1988); Ohio Rev. Code Ann. §5739.01 (B)(3)(f) (Supp. 1987); Okla. Stat., Tit. 68, § 1354(1)(D) (Supp. 1987); Tex. Tax Code Ann. §151.323 (Supp. 1988); Wash. Rev. Code §82.04.065 (1987); Wis. Stat. § 77.51(14)(m) (1985-1986).
      Some municipalities have begun to impose taxes on telephone calls. See, e. g., Greeley, Colorado, Ordinance, Tit. 4, §4.04.005 et seq. (1988); Wheat Ridge, Colorado, Ordinance No. 630 (1985), Los Angeles, California, Ordinance No. 162586 (1987).

       Section 4 states in part:
      “A tax is imposed upon the act or privilege of originating in this State or receiving in this State interstate telecommunications by a person in this State at the rate of 5% of the gross charge for such telecommunications purchased at retail from a retailer by such person.”
      “Gross charge” is defined as the amount paid for the telephone call, ¶2002, §§ 2(a) and (b), less charges for certain types of special equipment not at issue here. ¶2002, §§ 2(a)(1) — (5).
      The Tax Act defines telecommunications broadly to include
      “in addition to the meaning ordinarily and popularly ascribed to it, . . . without limitation, messages or information transmitted through use of local, toll and wide area telephone service; private line services; channel services; telegraph services; teletypewriter; computer exchange services; cellular mobile telecommunications service; specialized mobile radio; stationary two way radio; paging service; or any other form of mobile and portable one-way or two-way communications; or any other transmission of messages or information by electronic or similar means, between or among points by wire, cable, fiber-optics, laser, microwave, radio, satellite or similar facilities.” ¶ 2002, § 2(b).
      For the sake of simplicity, we use the terms “call” and “telephone call” to refer to these multifarious forms of telecommunications.

       Although not defined in the Tax Act, we understand the term “service address” to mean the address where the telephone equipment is located and to which the telephone number is assigned. See ¶2002, §§2(b) and (h).

       Roger Sweet has since replaced J. Thomas Johnson as Director of the Department of Revenue.

       Goldberg and McTigue also alleged that the Tax Act violates the Due Process and Equal Protection Clauses. They have abandoned these claims in this appeal. Brief for Appellants Goldberg and McTigue 9, n. 7.

       All parties conceded before the trial court, as they do here, that Illinois has a substantial nexus with the interstate telecommunications reached by the Tax Act.

       A collect call is one example of a telephone call which originates in another State but terminates in Illinois and is charged to an Illinois service address.

      In Complete Auto Transit, Inc. v. Brady, we overruled Spector Motor Service, Inc. v. O’Connor, 340 U. S. 602 (1951), which had prohibited state taxation on the privilege of doing business within a State if the tax reached interstate commerce. In Complete Auto we rejected Specter’s formalistic approach, stating that “[u]nder the present state of the law, the Specter rule, as it has come to be known, has no relationship to economic realities.” 430 U. S., at 279. We now seek to “ ‘establish a consistent and rational method of inquiry’ focusing on ‘the practical effect of a challenged tax.’” Commonwealth Edison Co. v. Montana, 453 U. S. 609, 615 (1981) (quoting Mobil Oil Corp. v. Commissioner of Taxes of Vermont, 445 U. S. 425, 443 (1980)).

       See, e. g., D. H. Holmes Co. v. McNamara, 486 U. S. 24 (1988) (use tax); Wardair Canada Inc. v. Florida Dept. of Revenue, 477 U. S. 1 (1986) (sales tax on fuel used in international commerce); Commonwealth Edison Co. v. Montana, supra (severance tax); Maryland v. Louisiana, 451 U. S. 725 (1981) (use tax); Mobil Oil Corp. v. Commissioner of Taxes of Vermont, 445 U. S. 425 (1980) (corporate income tax); Washington Dept. of Revenue v. Association of Washington Stevedoring Cos., 435 U. S. 734 (1978) (business and occupation tax).

       Those taxpayers who split their billing and service addresses between two different States face a risk of multiple taxation on a limited number of their interstate telephone calls. For example, if a company’s Arkansas headquarters paid the telephone bills of its Illinois subsidiary, two state taxes would be paid on telephone calls made by the Illinois subsidiary to the head office or any other Arkansas location. Such calls would terminate and be billed or paid in Arkansas, and they would also originate and be charged to an Illinois service address. Likewise, a collect call from the Arkansas headquarters to the Illinois subsidiary could be taxed in both States. The collect call would originate and be billed or paid in Arkansas, and it would also terminate and be charged to an Illinois service address. Noneollect calls from the Arkansas headquarters to the Illinois subsidiary would not, however, be captured by the Illinois Tax Act. Likewise, the Arkansas statute would not tax interstate calls made by the Illinois subsidiary to States other than Arkansas.

      Many of our Commerce Clause decisions concern state taxes on the movement of goods or the instrumentalities of interstate transportation. See, e. g., American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266 (1987) (trucks); Japan Line, Ltd. v. County of Los Angeles, 441 U. S. 434 (1979) (cargo containers); Complete Auto Transit, Inc. v. Brady, 430 U. S. 274 (1977) (motor carriers); Michigan-Wisconsin Pipe Line Co. v. Calvert, 347 U. S. 157 (1954) (oil pipelines); Central Greyhound Lines, Inc. v. Mealey, 334 U. S. 653 (1948) (buses); cf. Western Live Stock v. Bureau of Revenue, 303 U. S. 250, 257 (1938) (tax on gross receipts of intrastate train travel is valid while a like tax on an interstate train travel is not).

       Sprint alleges that it is “capable, administratively, of billing more than one state’s tax on a single interstate communication.” Brief for Appellant GTE Sprint Communications Corp. 4. This statement, however, tells us no more than that Sprint’s computerized billing system is capable of adding another line to consumers’ bills. Sprint does not explain, however, how it would keep track of and record the exact paths and in-state mileage of thousands of electronic impulses per minute.

      Years ago, we considered and rejected certain state taxes on interstate telecommunications. See, e. g., Cooney v. Mountain States Tel. & Tel. Co., 294 U. S. 384 (1935); Western Union Tel. Co. v. Pennsylvania, 128 U. S. 39 (1888); Ratterman v. Western Union Tel. Co., 127 U. S. 411 (1888); cf. Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1 (1878) (because the telegraph industry is interstate commerce, Act of Congress pre-empts state regulation). These cases considered a telecommunications technology only-distantly related to modern telecommunications technology and were decided in a pre-Complete Auto era when this Court held the view that interstate commerce itself could not be taxed. See n. 11, supra.

       Perhaps it is the sales tax-like attributes of the Tax Act that have persuaded the Court to dismiss the discrimination claim by focusing solely on the sales tax-like impact on local residents. See ante, at 262, 265, 266. A State may assess a sales tax on the entire value of the purchased item even though some amount of that value was added in other States. Appellees have contended throughout this litigation that the tax involved here should be viewed as a sales tax on the cost of the phone call. The state court refused to so characterize the tax, instead concluding that the tax was assessed on interstate commerce. Goldberg v. Johnson, 117 Ill. 2d 493, 498-500, 512 N. E. 2d 1262, 1265-1266 (1987) (per curiam). Although the Court’s analysis is properly informed by the sales tax-like attributes of the tax in question, it does not ultimately challenge the state court’s characterization of the tax and does not rest its holding on a recharacterization of the tax as a sales tax. Thus, it is insufficient to say, in response to the discrimination argument advanced by appellants, that because the tax burden falls only on the Illinois consumer, the tax — like a sales tax with a similar burden — is nondiscriminatory. Because the premise of our review of the Tax Act is that it applies to interstate activity, we must go further in responding to appellants’ contention that the Act imposes a disproportionate burden on interstate commerce.

       That is, half of the interstate calls are taxed at 5%, but the other half are taxed at 0%; the effective rate is 2'h%. On the other hand, all intrastate calls are taxed at 5%.

       This analysis is not obviated by the Court’s statement, with which I agree, that “[w]e . . . doubt that termination of an interstate telephone call, by itself, provides a substantial enough nexus for a State to tax a call.” Ante, at 263. That one State through which interstate commerce flows may not constitutionally tax such commerce does not mean that another State may make up for the gap, as it were, by taxing its share as well as the first State’s share. Thus, even if Indiana could not constitutionally tax the mere termination of an Illinois-Indiana call, Illinois still may tax only the portion of the call over which it has jurisdiction.


source: Caselaw Access Project

author: Justice Stevens Justice Kennedy, Justice Marshall,

license: Public Domain

text:
    PERRY v. LEEKE, COMMISSIONER, SOUTH CAROLINA DEPARTMENT OF CORRECTIONS, et al.
    No. 87-6325.
    Argued November 8, 1988
    Decided January 10, 1989

      W. Gaston Fairey, by appointment of the Court, 485 U. S. 1004, argued the cause and filed a brief for petitioner.

      Donald J. Zelenka, Chief Deputy Attorney General of South Carolina, argued the cause for respondents. With him on the brief were T. Travis Medlock, Attorney General, and James C. Anders.

        Jon May filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging reversal.

   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 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 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.

Thereafter, petitioner sought and obtained a federal writ of habeas corpus. Applying settled law in the Fourth Circuit, 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 (1976), cert. denied, 430 U. S. 908 (1977); Stubbs v. Bordenkircher, 689 F. 2d 1205, 1206-1207 (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.

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

II

There is merit in petitioner’s argument that a showing of prejudice is not an essential component of a violation of the 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. See, e. g., United States v. Cronic, 466 U. S., at 653-654; Chapman v. California, 386 U. S. 18, 23, n. 8 (1967); Gideon v. Wainwright, 372 U. S. 335 (1963); Glasser v. United States, 315 U. S. 60, 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 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 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:

“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 overnight recess); Herring v. New York, 422 U. S. 853 (1975) (bar on summation at bench trial); Brooks v. Tennessee, 406 U. S. 605, 612-613 (1972) (requirement that defendant be first defense witness); Ferguson v. Georgia, 365 U. S. 570, 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 344. Id., at 345-350 (actual conflict of interest adversely affecting lawyer’s performance renders assistance ineffective).” Id., at 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 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 Benson v. Ohio, ante, at 88; United States v. Cronic, supra, at 659, and n. 25. Thus, we cannot accept the rationale of the Court of Appeals’ decision.

Ill

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 the dissenting member of the South Carolina Supreme Court, see n. 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. 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 themselves to truthful statements based on their own recollections. The defendant’s constitutional right to confront the witnesses against him immunizes him from such physical sequestration. 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 moré 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. “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, 151 (CA2 1981) (Mishler, J., concurring), cert. denied, 455 U. S. 938 (1982).

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 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 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. 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 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.

Justice Kennedy,

concurring in part.

I join Parts I and III of the Court’s opinion and the holding that petitioner was not denied his constitutional right to assistance of counsel. In view of our ruling, it is quite unnecessary to discuss whether prejudice must be shown when the right to counsel is denied. I would not address that issue, and so I decline to join Part II of the Court’s opinion.

Justice Marshall,

with whom

Justice Brennan and Justice Blackmun join, dissenting.

In Geders v. United States, 425 U. S. 80 (1976), we held .unanimously that a trial judge’s order barring a defendant from conferring with his attorney during an overnight recess violated the defendant’s Sixth Amendment right to the assistance of counsel. The majority holds today that when a recess is “short,” unlike the “long recess” in Geders, a defendant has no such constitutional right to confer with his attorney. Ante, at 284. Because this distinction has no constitutional or logical grounding, and rests on a recondite understanding of the role of counsel in our adversary system, I dissent.

I

Contrary to the majority’s holding, the Sixth Amendment forbids “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.” Geders, supra, at 92 (Marshall, J., concurring) (emphasis in original). This view is hardly novel; on the contrary, every Court of Appeals to consider this issue since Geders, including the en banc Fourth Circuit in this case, 832 F. 2d 837, 839 (1987), has concluded that a bar on attorney-defendant contact, even during a brief recess, is impermissible if objected to by counsel. See Sanders v. Lane, 861 F. 2d 1033, 1039 . (CA7 1988) (collecting cases). With very few exceptions, the state appellate courts that have addressed this issue have agreed. The majority attempts to sidestep this point, stating that the “[f]ederal 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.” Ante, at 277, n. 2 (emphasis added). To the extent there has been disagreement in the lower courts, however, it has been limited to the separate question whether a Sixth Amendment violation predicated on a bar order should be subject to a prejudice or harmless-error analysis — the sole question on which the Court granted certiorari in this case.

In concluding that bar orders violate the Sixth Amendment, the lower courts have faithfully reflected this Court’s long-expressed view that “the Assistance of Counsel” guaranteed under the Constitution perforce includes the defendant’s right to confer with counsel about all aspects of his case:

“‘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 of the proceedings against him.’” Powell v. Alabama, 287 U. S. 45, 68-69 (1932), quoted in Geders, supra, at 88-89.

See also Johnson v. Zerbst, 304 U. S. 458, 462-463 (1938); Gideon v. Wainwright, 372 U. S. 335, 343-345 (1963); United States v. Wade, 388 U. S. 218, 224 (1967); Argersinger v. Hamlin, 407 U. S. 25, 31-36 (1972); United States v. Cronic, 466 U. S. 648, 659 (1984). This long line of cases, which stands for the proposition that a defendant has the right to the aid of counsel at each critical stage of the adversary process, is conspicuously absent from the majority’s opinion. The omission of this constitutional legacy is particularly glaring given that “[i]t is difficult to perceive a more critical stage . . . than the taking of evidence on the defendant’s guilt.” Green v. Arn, 809 F. 2d 1257, 1263 (CA6 1987). Instead, after an obligatory nod of the head to the fundamental nature of the right to counsel, the majority strings together several unstated assumptions and unsupported assertions and concludes that attorney-defendant discussions during short trial recesses may be completely barred because they might dis-serve the trial’s truth-seeking function. The majority’s conclusory approach ill befits the important rights at stake in this case.

A

The majority begins its analysis by stating that a defendant “has no constitutional right to consult with his lawyer while he is testifying.” Ante, at 281 (emphasis added). This truism is beside the point. Neither Perry nor his counsel sought to have Perry’s “testimony interrupted in order to give him the benefit of counsel’s advice,” ibid.; nor has Perry suggested that he had a constitutional right to the interruption. This case instead involves the separate question whether a defendant has a right to talk to his lawyer after the trial judge has called a recess for some reason independent of the lawyer’s desire to talk to the defendant or the defendant’s desire to talk to his lawyer.

The majority further blurs the real issue in this case by describing the practice of not allowing defendants or lawyers to interrupt the defendant’s testimony as a corollary of the “broader rule that witnesses may be sequestered.” Ibid. The majority even provides a lengthy footnote which contains citations to several Court of Appeals cases discussing the purposes of witness sequestration. Ante, at 281, n. 4. The flaw in the majority’s logic is that sequestration rules are inapplicable to defendants. Defendants, as the majority later acknowledges, enjoy a constitutional right under the Sixth Amendment to confront the witnesses against them. Ante, at 282; see also Geders, 425 U. S., at 88.

The majority’s false premise — that the issue is whether a defendant has the right to consult with his lawyer “while he is testifying” — naturally conjures up a greater-includes-the-lesser argument: Perry had no right to interrupt his testimony; he therefore had no reasonable expectation that he would be permitted to confer with counsel during any interruption provided by the trial judge. Yet, we rejected this facile argument in Geders. There, the trial judge sought to justify his bar order on the ground that it was merely an “accident” that he had called a recess during the defendant’s testimony. Geders, 425 U. S., at 83, n. 1. In dismissing this notion, we did not frame the inquiry as whether recesses normally occur during the course of a defendant’s testimony. Instead, we asked whether consultations normally occur during recesses called for some independent reason by the trial judge. Id., at 88; see also Sanders v. Lane, supra, at 1036, n. 1; 832 F. 2d, at 849, n. 4 (Winter, C. J., dissenting).

To the extent the majority recognizes that the dispositive fact is not a defendant’s right to interrupt, but rather the legitimacy of his expectation that he may speak with his lawyer during such an interruption, it does so by grounding its holding on a general “rul[e]” forbidding attorney-witness contact between a witness’ direct and cross-examination. Ante, at 282. This “rule,” we are told, is based on the view “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.” Ibid. This “rule” is applicable to a defendant, the majority contends, because when a defendant takes the stand, the rules applicable to nonparty witnesses are “generally applicable to him as well.” Ibid.

The defects in this line of reasoning are manifold. In the first place, the majority cites no authority whatsoever for its “rule.” Even if such authority exists, the presence of contrary authority undercuts any suggestion that settled practice renders unreasonable a defendant’s expectation that he will be able to speak with his lawyer during a brief recess. One need look no further than the facts of this case to see that the majority’s “rule” is often honored in the breach. The trial judge declared at least three recesses while witnesses for the State were testifying, Tr. 213, 274, 517; two of these recesses came at the end of direct testimony but before cross-examination had begun. Id., at 213, 517. During none of these recesses did the trial judge issue a bar order. The State’s witnesses thus were free to consult with anyone, including the prosecutors, during these breaks. Similarly, in nearly every case cited by the majority in its collection of post-Geders cases, ante, at 277-279, n. 2, there is no indication that witnesses for the State were barred from speaking with the prosecutor or their attorneys during trial recesses.

Even if the majority is correct that trial courts routinely bar attorney-witness contact during recesses between direct and cross-examination, its lumping together of defendants with all other witnesses would still be flawed, for it ignores the pivotal fact that the Sixth Amendment accords defendants constitutional rights above and beyond those accorded witnesses generally. We recognized the defendant’s unique status in Geders: “the petitioner was not simply a witness; he was also the defendant. ... 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.” 425 U. S., at 88; see also United States v. DiLapi, 651 F. 2d 140, 148 (CA2 1981) (“The fact that other witnesses were cautioned not to speak to anyone during recesses does not justify a prohibition upon defendant-lawyer conversations”). The majority, in its haste, today overlooks this axiomatic distinction.

B

The most troubling aspect of the majority’s opinion, however, is its assertion that allowing a defendant to speak with his attorney during a “short” recess between direct and cross-examination invariably will retard the truth-seeking function of the trial. Although this notion is described as an “empirical predicate” of our adversary system, ante, at 282, the majority provides not a shred of evidence to support it. Furthermore, the majority fails to acknowledge that, in Geders, we never equated the attorney-client contact which we held constitutionally mandated with the evasion of truth.

Central to our Sixth Amendment doctrine is the understanding that legal representation for the defendant at every critical stage of the adversary process enhances the discovery of truth because it better enables the defendant to put the State to its proof. As the author of today’s majority opinion wrote for the Court earlier this Term:

“The paramount importance of vigorous representation follows from the nature of our adversarial system of justice. This system is premised on the well-tested principle that truth — as well as fairness — is ‘best discovered by powerful statements on both sides of the question.’ Absent representation, however, it is unlikely that a criminal defendant will be able adequately to test the government’s case, for, as Justice Sutherland wrote in Powell v. Alabama, 287 U. S. 45 (1932), ‘[e]ven the intelligent and educated layman has small and sometimes no skill in the science of law.’ Id., at 69.” Penson v. Ohio, ante, at 84 (citations omitted).

Nowhere have we suggested that the Sixth Amendment right to counsel turns on what the defendant and his attorney discuss or at what point during a trial their discussion takes place. See generally Strickland v. Washington, 466 U. S. 668, 684-686 (1984); United States v. Cronic, 466 U. S., at 653-657; Polk County v. Dodson, 454 U. S. 312, 318-319 (1981); Herring v. New York, 422 U. S. 853, 857-858, 862 (1975).

With this understanding of the role of counsel in mind, it cannot persuasively be argued that the discovery of truth will be impeded if a defendant “regain[s]... a sense of strategy” during a trial recess. Ante, at 282. If that were so, a bar order issued during a 17-hour overnight recess should be sustained. Indeed, if the argument were taken to its logical extreme, a bar on any attorney-defendant contact, even before trial, would be justifiable. Surely a prosecutor would have greater success “punching] holes,” ibid., in a defendant’s testimony under such circumstances. Indeed, the prosecutor would then be assured that the defendant has not had “an opportunity to regroup and regain a poise . . . that the unaided witness [does] not possess.” Ibid. In other words, the prosecutor would be more likely to face the punch-drunk witness who the majority thinks contributes to the search for truth.

The majority’s fears about the deleterious effects of attorney-defendant contact during trial recesses are vastly overstated. Vigorous cross-examination is certainly indispensable in discerning the trustworthiness of testimony, but I would think that a few soothing words from counsel to the agitated or nervous defendant facing the awesome power of the State might increase the likelihood that the defendant will state the truth on cross-examination. The value of counsel in calming such a defendant would seem especially apparent in this case given that Perry, who the majority describes as “mildly retarded,” ante, at' 274, was on trial for his life. Furthermore, to remind a defendant that certain cross-examination questions might implicate his right against self-incrimination or relate to previously excluded evidence, or to caution a defendant to mind his demeanor at all times, is merely to brace the defendant for the “legal engine” steaming his way. Ante, at 283, n. 7, quoting 5 J. Wigmore, Evidence § 1367 (J. Chadbourn rev. 1974). I cannot accept the view that discussions of this sort necessarily threaten the trial’s truth-seeking function. To the extent that they might in some circumstances, it is important to remember that truth would not be sacrificed in the name of some obscure principle — a constitutional command hangs in the balance. See Geders, 425 U. S., at 91.

Although the majority appears to believe that attorney-defendant recess discussions on any. subject are inconsistent with “the discovery of truth,” ante, at 282, it finds discussions regarding testimony to be particularly pernicious. This distinction finds no support in our Sixth Amendment cases. But even if it did, the majority’s logic on this point would remain inscrutable. The majority distinguishes “long” recesses, such as the 17-hour recess at issue in Geders, from the “short” 15-minute recess in this case on the ground that it is “appropriate to presume,” or, alternatively, that there is “a virtual certainty,” ante, at 283, 284, that any discussion during a 15-minute recess will focus exclusively on the defendant’s upcoming testimony. Once again, the majority reasons by assertion; it offers no legal or empirical authority to buttress this proposition. While this assertion might have some validity with respect to nonparty witnesses, who might have little else to discuss with the parties’ attorneys, see Geders, supra, at 88, it defies common sense to argue that attorney-defendant conversations regarding “the availability of other witnesses, trial tactics, or even the possibility of negotiating a plea bargain,” ante, at 284, cannot, or do not, take place during relatively brief recesses.

For example, while a defendant is on the stand during direct examination, he may remember the name or address of a witness, or the location of physical evidence, which would be helpful to his defense. It would take mere seconds to convey this information to counsel. As a matter of sound trial strategy, defense counsel might believe that this new witness or evidence would have the most impact if presented directly after the defendant concluded his testimony. But under the majority’s approach, defense counsel would not even learn about this witness or evidence until the defendant steps down from the stand. Alternatively, the defendant might be so discouraged by his testimony on direct examination as to conclude that he should attempt plea negotiations with the prosecution immediately, or accept an outstanding plea bargain offer. It need only take seconds for him to convey this to his lawyer, particularly if they had previously discussed the advisability of pleading guilty. This opportunity might be forever lost, however, if a bar order issues and the prosecution conducts a successful cross-examination. These are just a few examples of the tactical exchanges which defendants and their attorneys might have midtrial; there is no reason to believe such exchanges predominantly occur during overnight recesses rather than during brief recesses. Indeed, an overnight recess “may entail a deprivation of little more than the fifteen minutes at stake here because many attorneys will devote the vast majority of such an extended break to preparation for the next day of trial, while sending the client home to sleep, or back to jail.” 832 F. 2d, at 849 (Winter, C. J., dissenting).

Yet another perverse aspect of the majority’s opinion is its recognition that a defendant has a “constitutional right” to discuss those “matters that go beyond the content of the defendant’s own testimony.” Ante, at 284. Having recognized this right, one would expect the majority to require trial judges to permit attorney-defendant contact during all recesses, no matter how brief, so long as trial testimony is not discussed. Instead, the majority merely suggests in a footnote that trial judges “may permit consultation between counsel and defendant during such a recess, but forbid discussion of ongoing testimony.” Ante, at 284, n. 8 (emphasis added). If attorney-client discussions regarding matters other than testimony have constitutional stature, they surely deserve more protection than the majority offers today. It may well be that Perry and his counsel would have discussed “matters that [went] beyond the content of [Perry’s] own testimony,” ante, at 284; Perry was, however, denied this constitutional right. In allowing trial judges to ban all brief recess consultations, even those including or limited to discussions regarding nontestimonial matters, the majority needlessly fires grapeshot where, even under its own reasoning, a single bullet would have sufficed.

II

Today’s decision is regrettable in two further respects. In practical terms, the majority leaves the trial judge “to guess at whether she has committed a constitutional violation” when she issues a recess bar order. Sanders v. Lane, 861 F. 2d, at 1037. Is it “appropriate to presume” that a 30-minute recess will involve a discussion of nontestimonial matters? How about a lunch break? Does it matter that defense counsel has promised only to discuss nontestimonial matters with his client? Does the majority’s rationale encompass recesses during the defendant’s direct or redirect testimony, or just those after the direct examination has concluded? These are not abstract inquiries, but the sort that have arisen, and will continue to arise, on a routine basis. See id., at 1036-1037 (collecting cases). By not even providing a practical framework in which to answer these questions, the majority ensures that defendants, even those in adjoining courtrooms, will be subject to inconsistent practices. Such inconsistency is untenable when a critical constitutional right is at stake.

The majority’s standardless approach guarantees a new bout of appellate litigation during which lower courts ineluctably will issue conflicting decisions as to the point at which a “short” recess bar order becomes a constitutionally impermissible “long” recess bar order. Given that “clarification is feasible,” United States v. Ross, 456 U. S. 798, 804 (1982), and indisputably desirable in this area of law, the majority’s willingness to tolerate such ambiguity is dismaying. See United States v. Allen, 542 F. 2d 630, 633 (CA4 1976). The majority purports to draw a “line of constitutional dimension,” ante, at 280, but it is one which lower courts, faced with a continuum of recess possibilities, will find impossible to discern.

Finally, today’s decision marks a lapse in this Court’s commitment to fundamental fairness for criminal defendants. The majority wholly ignores the trial judge’s uneven imposition of bar orders. No bar order issued when recesses were called during testimony by the State’s witnesses, but when a recess was called at the conclusion of Perry’s direct testimony, the trial judge suddenly became concerned that witnesses might be “cured or assisted or helped approaching. . . cross examination.” App. 4-5. Perry’s counsel objected that Perry was being unfairly singled out, but the trial judge responded that he felt compelled to act as he did to ensure, of all things, “fairness to the state.” App. 5. This peculiar sense of obligation meant that Perry was removed from the courtroom and held incommunicado for the duration of the recess.

Needless to say, the due process concerns underpinning the Sixth Amendment right to counsel are designed to ensure a fair trial for the defendant, not the State. See generally Strickland v. Washington, 466 U. S., at 684-685; United States v. Cronic, 466 U. S., at 653-656; United States v. Morrison, 449 U. S. 361, 364 (1981). By ensuring a defendant’s right to have counsel, which includes the concomitant right to communicate with counsel at every critical stage of the proceedings, see Powell v. Alabama, 287 U. S. 45, 68-69 (1932), the Constitution seeks “to minimize the imbalance in the adversary system.” United States v. Ash, 413 U. S. 300, 309, (1973). The majority twice disserves this noble goal — by isolating the defendant at a time when counsel’s assistance is perhaps most needed, and by ignoring the stark unfairness of according prosecution witnesses the very prerogatives denied the defendant. The Constitution does not permit this new restriction on the Sixth Amendment right to counsel. I dissent.

      “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., at 495-497, 299 S. E. 2d, at 327-328 (dissenting opinion).

       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 postconvietion 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 nonprejudieial 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 prohibiting 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).

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

      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) (“[0]r-dinarily, 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).

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

       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, 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”).

      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 ¶800[01] (1988) (cross-examination, a “‘vital feature’ of the Anglo-American system,” “‘sheds light on the witness’ perception, memory and narration,’ ” and “can expose inconsistencies, incompletenesses, and inaccuracies in his testimony”).

       Alternatively, the judge may permit consultation between counsel and defendant during such a recess, but forbid discussion of ongoing testimony. See People v. Stroner, 104 Ill. App. 3d, at 5-6, 432 N. E. 2d, at 351 (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).

       See, e. g., 23 C. J. S., Criminal Law § 1025 (1961); United States ex rel. Lovinger v. Circuit Court for the 19th Judicial District, 652 F. Supp. 1336, 1346 (ND Ill. 1987), aff’d, 845 F. 2d 739 (CA7 1988); Griffin v. State, 383 So. 2d 873, 878-879 (Ala. Crim. App. 1980); People v. Pendleton, 75 Ill. App. 3d 580, 594-595, 394 N. E. 2d 496, 506-507 (1979); cf. United States v. Allen, 542 F. 2d 630, 633, n. 1 (CA4 1976) (“While the sequestering of witnesses is of ancient origin the practice has never been universal, which suggests that the danger of influencing witnesses feared so much by some is not at all feared by others”).

       Likewise, the majority’s equation of a defendant’s discussions with his attorney with a defendant’s discussions with “third parties,” ante, at 282, seriously misapprehends the nature of Sixth Amendment rights.

      Cf. Rock v. Arkansas, 483 U. S. 44, 57-58, and n. 15 (1987); Glasser v. United States, 315 U. S. 60, 71 (1942). The trial judge did at one point recognize that defendant Perry was not like the other witnesses. The significance of this distinction escaped him, however, for he justified the bar order imposed on Perry in part on the ground that “no one is on trial but Mr. Perry .... The 6th Amendment rights apply only to one who is on trial.” App. 5. This reasoning stands the Sixth Amendment on its head.

      The majority errs, furthermore, in assuming, ante, at 282, that defendants are subject to the same rules of cross-examination as nonparty witnesses. See generally E. Cleary, McCormick on Evidence §§21-26 (3d. ed. 1984) (discussing different views on permissible scope of cross-examination of defendants and nonparty witnesses); §§ 41-44 (discussing different subjects on which defendants and nonparty witnesses may be impeached); §§ 130-140 (discussing different ways in which defendants and nonparty witnesses may invoke their self-incrimination rights while testifying); compare Fed. Rule Evid. 404(a)(1) (character evidence of the accused) with Fed. Rule Evid. 404(a)(3) (character evidence of a witness).

       The majority claims that its decision does not “res[t] on an assumption that trial counsel will engage in unethical coaching. ” Ante, at 281. Nonetheless, I am inclined to believe that the majority’s fears that the defendant will “regain ... a sense of strategy” are motivated, at least in part, by an underlying suspicion that defense attorneys will fail to “respect the difference between assistance and improper influence.” Geders v. United States, 425 U. S. 80, 90, n. 3 (1976). “If our adversary system is to function according to design,” however, “we must assume that an attorney will observe his responsibilities to the legal system, as well as to his client.” Id., at 93 (Marshall, J., concurring); see also United States v. Allen, 542 F. 2d, at 633 (“[A]ll but very few lawyers take seriously their obligation as officers of the court and their proper role in the administration of justice. We think the probability of improper counseling, i. e., to lie or evade or distort the truth, is negligible in most cases”).

       At trial, a psychologist and a psychiatrist testified regarding Perry’s personality and mental health. They stated that Perry, then 21 years old, had an I. Q. of 86, had encountered learning difficulties in school, had dropped out by the ninth grade, and had a childlike personality. They also testified that Perry often had difficulty distinguishing reality from fantasy and that he suffered from “hysterical reaction,” an inability to cope with stressful situations. Tr. 1048-1049, 1053-1054, 1087, 1091-1098.
      One can only assume that the treatment the trial judge accorded Perry during the 15-minute recess exacerbated his sense of fright or trepidation. After the trial judge sua sponte ordered the recess, Perry’s counsel attempted to confer with Perry in order to “answer his questions and also to make sure he understood his rights on cross-examination.” App. 7. The bar order, however, prevented him from doing so. During the recess, Perry was “taken out of the courtroom and placed in a very small room with no window and no other person, just one chair, enclosed in about a six by six room, with no one to talk to.” Tr. of Oral Arg. 8. Apparently, Perry’s counsel was not even allowed to explain to Perry why they were not permitted to confer during the recess. Treatment of this sort may well have had an adverse effect on Perry’s ability to retain his composure and testify truthfully on cross-examination.

       Chief Judge Winter further observed:
      “Few categories of constitutional error so undermine the adversary system as to warrant reversal without any proof of prejudice in a particular case. Denial of the assistance of counsel during a critical stage of criminal proceedings is one such category of error. Whether the deprivation of counsel spans an entire trial or but a fraction thereof, it renders suspect any result that is obtained.” 832 F. 2d, at 845.

      The majority assumes that it is possible to distinguish discussions regarding trial strategy from discussions regarding testimony. I am not so sure. Assume, for example, that counsel’s direct examination of the defendant inadvertently elicits damaging information that can be effectively neutralized on redirect only if the defendant has the opportunity to explain his direct testimony to counsel. If a recess were called, the ensuing attorney-defendant discussion would seem to be as much about trial strategy as about upcoming testimony. Without a chance to speak with the defendant, counsel will be hampered in knowing whether redirect is even advisable. The majority’s failure to spell out the difference — if there is one — between testimonial and nontestimonial discussions may well “have a chilling effect on cautious attorneys, who might avoid giving advice on non-testimonial matters for fear of violating [a court order barring recess discussions of testimonial matters].” Mudd v. United States, 255 U. S. App. D. C. 78, 81, 798 F. 2d 1509, 1512 (1986).

       In addition to the bar order issued against Perry, the trial judge ordered Perry’s wife not to speak with anyone during a recess called after she had completed her direct testimony on behalf of her husband. Defense counsel protested that “this was not done during the state’s case. It is only being done on the defendant’s case and it is being done without even the request of the state .... And I again urge the Court that it appears to show some bias on the part of the Court.” Tr. 904. The trial judge rebuffed the objection: “I don’t apologize for it. I’m in charge of this trial and I’m going to see that it remains fair to all parties.” Ibid, (emphasis added).