dissenting:
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.
The Supreme Court has long recognized the indispensable role in the adversary process that is played by legal counsel. The Court invokes a strong presumption that counsel perform competently in this role, and defers routinely to what are invariably characterized as an attorney’s “strategic” decisions. As a necessary corollary to this principle, however, we must accept the consequences of preventing an attorney from performing that vital role. The majority here does not deny that the district court committed an error of constitutional magnitude. Rather than create arbitrary lines below which we pretend to some assurance that prejudice is unlikely, we must recognize the concomitant presumption that a denial of counsel — for whatever length of time — is a denial of constitutional right and that a conviction obtained where there has been such a denial cannot stand.
I.
In Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), the Supreme Court overturned a conviction obtained after defendant was precluded from consulting with his attorney during a seventeen-hour overnight recess between his direct and cross-examination. The Court held that defendant’s Sixth Amendment right to counsel had been violated, and reversed and remanded the case without any inquiry into whether the violation had resulted in actual prejudice to defendant. The opinion noted, however, that the effect of a similar communication bar imposed during “a brief routine recess” in the trial was not before the Court. 425 U.S. at 89 n. 2, 96 S.Ct. at 1336 n. 2.
The issue reserved in Geders was first addressed by us in United States v. Allen, 542 F.2d 630 (4 Cir.1976), cert. denied, 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584 (1977). We held in Allen that
the Sixth Amendment right to counsel.... is so fundamental that there should never occur any interference with it for any length of time, however brief, absent some compelling reason.
542 F.2d at 633. We deemed insufficient to justify even a brief encroachment on the right to counsel the fear that defense attorneys would engage in unethical coaching— the only rationale offered in support of the trial court’s action here. We also refused to credit the assumption that many attorneys would flout their ethical obligations. Moreover, we noted that improper coaching can be deterred by knowledge of the prosecution's ability to inquire about such coaching during cross-examination. The few attorneys whose scruples are more easily *846overcome will nonetheless achieve little in a few minutes time, and will focus instead on pretrial efforts which the court is, in any case, powerless to prevent. As Justice Marshall, joined by Justice Brennan, remarked in his concurrence in Geders,
I find it difficult to conceive of any circumstances that would justify a court’s limiting the attorney’s opportunity to serve his client because of fear that he may disserve the system by violating accepted ethical standards. If any order barring communication between a defendant and his attorney is to survive constitutional inquiry, it must be for some reason other than a fear of unethical conduct.
425 U.S. at 93, 96 S.Ct. at 1338. Accordingly, we concluded in Allen that “the Sixth Amendment right to counsel ought to prevail over the extremely limited value of circumscribing that right for perhaps 20 or 40 minutes during the course of a trial day.” 542 F.2d at 633. We rejected the idea of conducting a case-by-case assessment of whether a defendant had been prejudiced by a given deprivation of counsel; “the administration of such a rule ... would not be worth its cost.” Id.
Six years later, in Stubbs v. Bordenkircher, 689 F.2d 1205, 1206 (4 Cir.1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983), we reaffirmed our holding in Allen:
We think the district court properly concluded that any restriction upon a defendant’s access to his counsel during a recess, whether the recess be extended or brief, is constitutionally impermissible; and, further, that a petitioner such as Stubbs is not required to demonstrate prejudice.
We added the requirement, however, that defendant prove that his right to counsel was actually denied i.e., “that he desired to consult with his attorney, and would have consulted with him but for the restriction placed upon him by the trial judge.” Id. at 1207.1
II.
The majority in this case holds that two recent Supreme Court decisions have undercut Allen and Stubbs.2 I cannot agree.
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) the Supreme Court established a two-part test for analyzing claims of ineffective assistance of counsel: a defendant must prove that the assistance was “deficient,” and that he was so prejudiced thereby that the result of the trial is rendered unreliable. 466 U.S. at 687-90, 104 S.Ct. at 2064-66. In United States v. Cronic, 466 U.S. 648, 660-62, 666, 104 S.Ct. 2039, 2050, 80 L.Ed.2d 657 (1984), the Court held that there are some limited circumstances in which ineffectiveness may be “properly presumed without inquiry into [counsel’s] actual performance at trial,” but that such was not the case there. Neither of these decisions dictates a different result in Allen or Stubbs; to the contrary, they support the analysis employed in those earlier cases.
Unlike Allen, Stubbs and the case at bar, both Strickland and Cronic involved defendants who had full access to their attor*847neys; the question in each of those Supreme Court decisions concerned the adequacy of the performance of the attorneys. Indeed, in both Strickland and Cronic, the Court was careful to distinguish cases in which a defendant’s access to counsel was denied at some key point during the trial. Cronic, 466 U.S. at 659 n. 25, 104 S.Ct. at 2047 (“The Court has uniformly found constitutional error without any showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding. See, e.g., Geders v. United States, ....”); Strickland, 466 U.S. at 692, 104 S.Ct. at 2067. See also Green v. Arn, 809 F.2d 1257, 1262-63 (6 Cir.1987) pet. for cert. filed (Apr. 24, 1987); Crutchfield v. Wainwright, 803 F.2d 1103, 1106-09 (11 Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 3235, 97 L.Ed.2d 740 (1987) (“Cronic and Strickland make clear that ‘where actual or constructive denial of assistance of counsel occurs a per se rule of prejudice applies’ ” (citation omitted)); Siverson v. O’Leary, 764 F.2d 1208, 1216 (7 Cir.1985) (Strickland and Cronic explicitly treat as separate and distinct cases involving the denial of counsel and cases involving ineffective assistance).
There are several justifications for this distinction. As the Supreme Court noted in Cronic, 466 U.S. at 658-59, 104 S.Ct. at 2046-47:
There are ... circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.
Most obvious, of course, is the complete denial of counsel. The presumption that counsel’s assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial, [footnotes omitted]
Accord Strickland 466 U.S. at 692, 104 S.Ct. at 2067; Crutchfield, 803 F.2d at 1108-09. If the denial occurs at a critical stage of the proceedings, its duration should make little difference. See Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 1437, 89 L.Ed.2d 674, 685 (1986) (“some constitutional errors — such as denying a defendant the assistance of counsel at trial ... — are so fundamental and pervasive that they require reversal without regard to the facts or circumstances of the particular case”); Geders, 425 U.S. at 88-89, 96 S.Ct. at 1335; quoting Powell v. Alabama, 287 U.S. 45, 68-69, 53 S.Ct. 55, 63-64, 77 L.Ed. 158 (1932) (“[A criminal defendant] requires the guiding hand of counsel at every step in the proceedings against him”); Crutchfield, 803 F.2d at 1108 (any denial of counsel constitutes reversible error and requires a new trial); United States v. Bryant, 545 F.2d 1035, 1036 (6 Cir.1976). Indeed, as Justice Marshall observed in his Geders concurrence, “the general principles adopted by the Court today are fully applicable to the analysis of any order barring communication between a defendant and his attorney, at least where that communication would not interfere with the orderly and expeditious progress of the trial.” 425 U.S. at 92, 96 S.Ct. at 1337 (emphasis in original).
Our system of criminal justice is grounded on the premise that the adversarial process yields fair and reliable results. This process can achieve that result only when there are present reasonably effective advocates on each side. As the Supreme Court explained in Strickland, “[t]he Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel’s playing a role that is critical to the ability of the adversarial system to produce just results.” 466 U.S. at 685, 104 S.Ct. at 2063. Because of the difficulties in second-guessing strategic decisions made in the heat of a trial, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance....” Id. at 689, 104 S.Ct. at 2065. Thus, once a defendant’s fate is placed in the hands of an attorney courts are loathe to impugn the resulting verdict as unfairly procured. However, that presumption of fairness is triggered only when the attorney is allowed to do his job. It follows that a defendant’s ability to confer with his attorney at every critical stage is a prerequisite to invoking the presumption that the result is a just one. See Cronic, 466 U.S. at *848659, 104 S.Ct. at 2047 (“The presumption that counsel’s assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial”). Accordingly, the heavy burden imposed on complaining defendants in ineffective assistance cases like Strickland and Cronic has no relevance in cases alleging a complete denial of such assistance at a critical juncture:
The crucial premise on which the Strickland formula rests — that counsel was in fact assisting the accused during the proceedings and should be strongly presumed to have made tactical judgments “within the wide range of reasonable professional assistance,” 104 S.Ct. at 2066 — is totally inapplicable when counsel was absent from the proceedings and unavailable to make any tactical judgments whatsoever.
Siverson, 764 F.2d at 1216. The same presumption that requires a demonstration of prejudice in establishing claims of ineffective assistance simultaneously renders unnecessary such a requirement for claims of denial of assistance.
III.
One reason cited by the Strickland Court for endorsing a strong presumption of effective assistance is the concern that “intrusive post-trial inquiry into attorney performance or ... detailed guidelines for its evaluation” risks interfering with the attorney-client relationship and deterring ardent and independent advocacy. See 466 U.S. at 690, 104 S.Ct. at 2066. It is precisely those risks, however, which are likely to result from application of Strickland’s requirement of proof of prejudice in cases alleging denial of assistance. Bailey v. Redman, 657 F.2d 21, 24 (3 Cir.1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 310 (1982) (rejecting prejudice requirement for this reason). As the District of Columbia Circuit recently explained:
The only way that a defendant could show prejudice would be to present evidence of what he and counsel discussed, what they were prevented from discussing, and how the order altered the preparation of his defense. Presumably the government would then be free to question defendant and counsel about the discussion that did take place, to see if defendant nevertheless received adequate assistance.
We cannot accept a rule whereby private discussions between counsel and client could be exposed in order to let the government show that the accused’s sixth amendment rights were not violated.
Mudd v. United States, 798 F.2d 1509, 1513 (D.C.Cir.1986) (emphasis in original).3 The majority ostensibly avoids this predicament by foregoing any assessment of prejudice in this case, and choosing instead to label harmless, as a matter of law, the fifteen-minute deprivation of counsel to which Perry was subjected. Such an approach, while expedient in this instance, provides neither a logical nor lasting solution to the problem.
As noted above, any denial of a defendant's access to counsel, no matter how long, is presumptively prejudicial if it occurs during a critical stage of the proceedings. The nonmonetary value of an attorney’s assistance is not measured solely, or even primarily, in hours and minutes. It is not difficult to conceive of situations in which a ten or fifteen minute recess could be critical to the outcome of a trial. It may be that counsel during direct examination had a new thought as to a possible helpful *849inquiry which could be made on rebuttal if defendant’s recollection of this information was not triggered until defendant appeared on the witness stand. See, e.g., Allen, 542 F.2d at 638. It may be that counsel during direct examination had a new thought as to a possible inquiry which could be made on rebuttal if defendant’s proposed answer were only known. It may be that the prosecution elicited from defendant unanticipated and damaging testimony which defendant can effectively neutralize, but only if he can explain the situation to his attorney so that the latter can ask the appropriate questions during rebuttal. Even an attorney’s soothing assurances to a defendant, prior to cross-examination, along with reminders of the rules for such testimony, could have a marked effect on a defendant’s performance and demeanor on the stand. Other examples can be posited, but the possible situations in which the assistance of counsel may be critical are too numerous for exhaustive treatment here. Their only common threads are the irrelevance of the duration of the deprivation of counsel or the fortuity of the circumstances giving rise to the deprivation.4 Indeed, deprivation during an overnight recess, which the majority acknowledges to require automatic reversal, may entail an effective 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.
Even were I to concede that duration is determinative of prejudice, I would nonetheless find the majority’s position insupportable. In the majority’s view, there lies somewhere between the seventeen hours in Geders and the fifteen minutes in the instant case a period of time above which all deprivations of counsel are prejudicial per se, and below which they are invariably harmless. Divination of the dividing point between these critical periods is, to my mind, an impossible task. Such an endeav- or will require either an arbitrary selection, unrelated to the existence or probability of actual prejudice, or the very type of case-by-case inquiry which the per se approach wisely seeks to avoid. In either situation, it is the delicate and time-honored attorney-client relationship, and its pivotal role in our adversary system, that suffers.
Most circuits that have considered the issue have adopted a per .se rule under which deprivations of counsel during critical stages of a trial are held to warrant reversal without a finding of prejudice. Crutchfield, 803 F.2d at 1109. See, e.g., Green, 809 F.2d at 1263 (6 Cir.1987) (defendant need merely prove attorney’s absence during critical stage — harmless error analysis appropriate only in some instances, such as absence during preliminary hearing, jury deliberations and return of verdict); Crutchfield, 803 F.2d at 1109-10 (11 Cir.1986) {per se rule applies once defendant proves consultation would have occurred absent court intervention), Bailey, 657 F.2d at 24 (3 Cir.1981) (no demonstration of prejudice is necessary; defendant must only prove interference with his desire to meet with counsel); United States v. Vesaas, 586 F.2d 101, 102 n. 2 (8 Cir.1978) (“we have grave doubts that even a brief restriction on a criminal defendant’s right to confer with counsel can be squared with the Sixth Amendment”) (dicta).5 The Second Circuit, while declining to grant an automatic reversal in the case before it at the time, has suggested the possibility of prospective application of a per se rule. In United States v. Dilapi, 651 F.2d 140, 147-49 (2 Cir.1981), cert. denied 455 U.S. 938, 102 S.Ct. 1427, 71 L.Ed.2d 648 (1982), the court refused to require reversal where *850defendant’s consultation with counsel was barred during a five-minute recess in the middle of defendant’s cross-examination, finding “not even a remote risk of actual prejudice.” This was, however, the first ruling in that circuit to deal with a brief recess in the aftermath of Geders. Accordingly, the court was careful to note:
We need not determine whether a similar instruction would require reversal in cases arising hereafter without regard to actual prejudice. It is sufficient to state that the instruction should not again be given.
Id. at 149.
A per se rule of reversal for all deprivations of counsel would pose no grave threat to the administration of the criminal justice system. A prophylactic rule of the type advocated here would be extremely easy to follow. As the court in DiLapi apparently recognized, supra, once a rule is announced that proscribes any judicial interference with attorney-client consultations, there is no reason to believe that trial courts will deviate therefrom. In those rare cases where deviations are nonetheless contemplated, the advantages of a per se rule will still outweigh its costs. As the Supreme Court observed in Geders,
There are a variety of ways to further the purpose served by sequestration without placing a sustained barrier to communication between a defendant and his lawyer. To the extent that conflict remains between the defendant’s right to consult with his attorney during a long overnight recess in the trial, and the prosecutor’s desire to cross-examine the defendant without the intervention of counsel, with the risk of improper “coaching,” the conflict must, under the Sixth Amendment, be resolved in favor of the right to the assistance and guidance of counsel. Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972).
425 U.S. at 91, 96 S.Ct. at 1336.
In sum, I do not believe that Strickland and Cronic necessitate reconsideration or modification of this circuit’s precedents, nor do I believe that any modification is desirable. Any deprivation of the right to counsel, a right which lies at the foundation of our system of criminal justice, warrants reversal without proof of prejudice, and the Supreme Court has consistently so held. I see no justification for the exception created by the majority.
Accordingly, I respectfully dissent.
PHILLIPS, MURNAGHAN and SPROUSE, JJ., authorize me to say that they join in this opinion.
. The government argues that this latter requirement was not met in this case because there is no proof that Perry desired to consult with his attorney during the break — only that his attorney wished to speak with Perry. This distinction is untenable. As Perry argues, it is the function of defense attorneys to speak on behalf of their clients in addressing the court. Indeed, an attorney’s continual presence is constitutionally required precisely because the defendant will often be unable to gauge for himself when he is in need of legal assistance. See Strickland v. Washington, 466 U.S. 668, 685-89, 104 S.Ct. 2052, 2063-65, 80 L.Ed.2d 674 (1984); Geders, 425 U.S. at 88-89, 96 S.Ct. at 1335-36. When examined in context, it is clear that the opinion in Stubbs would recognize an objection made by either the attorney or defendant himself. See 689 F.2d at 1207. See also Crutchfield v. Wainwright, 803 F.2d 1103, 1109 (11 Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 3235, 97 L.Ed.2d 740 (1987) ("If the record reflected such a desire [to consult] by either [defendant or his attorney], we would find that the trial judge’s admonition [against such consultation] constituted reversible error"). Moreover, Geders itself involved an objection registered solely by the defendant’s attorney.
. It is interesting to note that the government made no such suggestion in its brief.
. Another justification for requiring the defendant to demonstrate prejudice is to ensure that there has actually been a Sixth Amendment violation, i.e., an impairment of "the reliability of the trial process." Cronic, 466 U.S. at 658, 104 S.Ct. at 2046. In this case, however, the requirement that a defendant prove an actual deprivation of counsel — that there would have been consultation but for the court’s order — serves the same purpose. Had the attorney been permitted to consult with his client, we could have assumed that he would have performed competently so as to trigger the presumption of a fair and reliable result. Conversely, once it is assumed that, but for the court's intervention, the attorney would have been performing his advisory function, it follows that the denial of his assistance was presumptively detrimental and casts doubt upon the fairness and reliability of the trial itself.
. The majority opinion suggests that because Perry had no entitlement to a recess, the aid which his counsel may have given him during the fortuitous one which occurred is simply irrelevant. This, it seems to me, stands Sixth Amendment precedents on their head. It is not the fortuity of the opportunity that a defendant has to consult counsel that is important. It is the services that counsel could render.
. The Seventh Circuit does not require defendants to prove prejudice, as in Strickland, but does permit the government to prove that the error was harmless beyond a reasonable doubt. Siverson, 764 F.2d 1208, 1217 (7 Cir.1985).