OCTOBER TERM, 1999
Syllabus
PORTUONDO, SUPERINTENDENT, FISHKILL CORRECTIONAL FACILITY
v. AGARD
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
No. 98-1170. Argued November 1, 1999-Decided March 6, 2000
Respondent was convicted on New York criminal charges after a
trial that required the jury to decide whether it believed the
testimony of the victim and her friend or the conflicting testimony
of respondent. The prosecutor challenged respondent's credibility
during summation, calling the jury's attention to the fact that
respondent had the opportunity to hear all other witnesses testify
and to tailor his own testimony accordingly. The trial court
rejected respondent's objection that these comments violated his
right to be present at trial. After exhausting his state appeals,
respondent filed a petition for habeas corpus in federal court
claiming,
inter alia, that the prosecutor's comments
violated his Fifth and Sixth Amendment rights to be present at
trial and confront his accusers, and his Fourteenth Amendment right
to due process. The District Court denied his petition, but the
Second Circuit reversed.
Held:
1. The prosecutor's comments did not violate respondent's Fifth
and Sixth Amendment rights. The Court declines to extend to such
comments the rationale of
Griffin v.
California,
380 U. S. 609, in
which it held that a trial court's instruction about a defendant's
refusal to testify unconstitutionally burdened his privilege
against self-incrimination. As a threshold matter, respondent's
claims find no historical support.
Griffin, moreover, is a
poor analogue for those claims.
Griffin prohibited the
prosecution from urging the jury to do something the jury is not
permitted to do, and upon request a court must instruct the jury
not to count a defendant's silence against him. It is reasonable to
expect a jury to comply with such an instruction because inferring
guilt from silence is not always "natural or irresistible,"
id., at 615; but it is natural and irresistible for a jury,
in evaluating the relative credibility of a defendant who testifies
last, to have in mind and weigh in the balance the fact that he has
heard the testimony of those who preceded him. In contrast to the
comments in
Griffin, which suggested that a defendant's
silence is "evidence of guilt,"
ibid., the prosecutor's
comments in this case concerned respondent's credibility as a
witness. They were therefore in accord with the Court's
longstanding rule that when a defendant takes the stand, his
credibility may be assailed like that of any
62
Syllabus
other witness-a rule that serves the trial's truth-seeking
function,
Perry v.
Leeke, 488 U. S. 272, 282. That
the comments here were generic rather than based upon a specific
indication of tailoring does not render them infirm. Nor does the
fact that they came at summation rather than at a point earlier in
the trial. In
Reagan v.
United States, 157 U. S. 301, 304, the
Court upheld the trial court's recitation of an interested-witness
instruction that directed the jury to consider the defendant's deep
personal interest in the case when evaluating his credibility. The
instruction in
Reagan, like the prosecutor's comments in
this case, did not rely on any specific evidence of actual
fabrication for its application, nor did it come at a time when the
defendant could respond. Nevertheless, the Court considered the
instruction to be perfectly proper. Pp. 65-73.
2. The prosecutor's comments also did not violate respondent's
right to due process. To the extent his due process claim is based
upon an alleged burdening of his Fifth and Sixth Amendment rights,
it has been disposed of by the determination that those Amendments
were not directly infringed. Respondent also argues, however, that
it was improper to comment on his presence at trial because New
York law requires him to be present. Respondent points to the
Court's decision in
Doyle v.
Ohio, 426 U. S. 610, for
support. The Court held in
Doyle that the prosecution may
not impeach a defendant with his
post-Miranda warnings
silence because those warnings carry an implicit "assurance that
silence will carry no penalty."
Id., at 618. No promise of
impunity is implicit in a statute requiring a defendant to be
present at trial, and there is no authority whatever for the
proposition that the impairment of credibility, if any, caused by
mandatory presence at trial violates due process. Pp.74-75.
117 F.3d
696, reversed and remanded.
SCALIA, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and O'CONNOR, KENNEDY, and THOMAS, JJ., joined.
STEVENS, J., filed an opinion concurring in the judgment, in which
BREYER, J., joined,
post, p. 76. GINSBURG, J., filed a
dissenting opinion, in which SOUTER, J., joined,
post, p.
76.
Andrew A. Zwerling argued the cause for petitioner.
With him on the briefs were Richard A. Brown, John M.
Castellano, and Ellen C. Abbot.
Jonathan E. Nuechterlein argued the cause for the United States
as amicus curiae urging reversal. With him on the brief were
Solicitor General Waxman, Assistant Attorney
63
General Robinson, Deputy Solicitor General Dreeben, and Deborah
Watson.
Beverly Van Ness argued the cause and filed a brief for
respondent. *
JUSTICE SCALIA delivered the opinion of the Court.
In this case we consider whether it was constitutional for a
prosecutor, in her summation, to call the jury's attention to the
fact that the defendant had the opportunity to hear all other
witnesses testify and to tailor his testimony accordingly.
I
Respondent's trial on 19 sodomy and assault counts and 3 weapons
counts ultimately came down to a credibility determination. The
alleged victim, Nessa Winder, and her friend, Breda Keegan,
testified that respondent physically assaulted, raped, and orally
and anally sodomized Winder, and that he threatened both women with
a handgun. Respondent testified that he and Winder had engaged in
consensual vaginal intercourse. He further testified that during an
argument he had with Winder, he struck her once in the face. He
denied raping her or threatening either woman with a handgun.
During summation, defense counsel charged Winder and Keegan with
lying. The prosecutor similarly focused on the credibility of the
witnesses. She stressed respondent's interest in the outcome of the
trial, his prior felony conviction, and his prior bad acts. She
argued that respondent was a "smooth slick character ... who had an
answer for every-
*Briefs of
amici curiae urging reversal were filed for
the Criminal Justice Legal Foundation by
Kent S.
Scheidegger and
Charles L. Hobson; and for the New
York State District Attorneys Association by
William
J. Fitzpatrick, Steven A. Hovani, and
Michael
J. Miller.
Deanne E. Maynard and
Lisa Kemler filed a brief
for the National Association of Criminal Defense Lawyers as
amicus curiae urging affirmance.
64
thing," App. 45, and that part of his testimony "sound[ed]
rehearsed,"
id., at 48. Finally, over defense objection, the
prosecutor remarked:
"You know, ladies and gentlemen, unlike all the other witnesses
in this case the defendant has a benefit and the benefit that he
has, unlike all the other witnesses, is he gets to sit here and
listen to the testimony of all the other witnesses before he
testifies.
"That gives you a big advantage, doesn't it. You get to sit here
and think what am I going to say and how am I going to say it? How
am I going to fit it into the evidence?
"He's a smart man. I never said he was stupid ....
He used everything to his advantage." Id., at 49.
The trial court rejected defense counsel's claim that these last
comments violated respondent's right to be present at trial. The
court stated that respondent's status as the last witness in the
case was simply a matter of fact, and held that his presence during
the entire trial, and the advantage that this afforded him, "may
fairly be commented on."
Id., at 54.
Respondent was convicted of one count of anal sodomy and two
counts of third-degree possession of a weapon. On direct appeal,
the New York Supreme Court reversed one of the convictions for
possession of a weapon but affirmed the remaining convictions.
People v.
Agard, 199 App. Div. 2d 401, 606 N. Y. S.
2d 239 (2d Dept. 1993). The New York Court of Appeals denied leave
to appeal.
People v.
Agard, 83 N. Y. 2d 868, 635 N.
E. 2d 298 (1994).
Respondent then filed a petition for habeas corpus relief in
federal court, claiming,
inter alia, that the prosecutor's
comments violated his Fifth and Sixth Amendment rights to be
present at trial and confront his accusers. He further claimed that
the comments violated his Fourteenth Amend-
65
ment right to due process. The District Court denied the
petition in an unpublished order. A divided panel of the Second
Circuit reversed, holding that the prosecutor's comments violated
respondent's Fifth, Sixth, and Fourteenth Amendment rights.
117 F.3d
696 (1997), rehearing denied,
159 F.3d
98 (1998). We granted certiorari. 526 U. S. 1016 (1999).
II
Respondent contends that the prosecutor's comments on his
presence and on the ability to fabricate that it afforded him
unlawfully burdened his Sixth Amendment right to be present at
trial and to be confronted with the witnesses against him, see
Illinois v.
Allen, 397 U. S. 337 (1970);
Pointer v.
Texas, 380 U. S. 400 (1965), and
his Fifth and Sixth Amendment rights to testify on his own behalf,
see
Rock v.
Arkansas, 483 U. S. 44 (1987).
Attaching the cost of impeachment to the exercise of these rights
was, he asserts, unconstitutional.
Respondent's argument boils down to a request that we extend to
comments of the type the prosecutor made here the rationale of
Griffin v.
California, 380 U. S. 609 (1965),
which involved comments upon a defendant's
refusal to
testify. In that case, the trial court instructed the jury that it
was free to take the defendant's failure to deny or explain facts
within his knowledge as tending to indicate the truth of the
prosecution's case. This Court held that such a comment, by
"solemniz[ing] the silence of the accused into evidence against
him," unconstitutionally "cuts down on the privilege [against
self-incrimination] by making its assertion costly."
Id., at
614.
We decline to extend
Griffin to the present context. As
an initial matter, respondent's claims have no historical
foundation, neither in 1791, when the Bill of Rights was adopted,
nor in 1868 when, according to our jurisprudence, the Fourteenth
Amendment extended the strictures of the Fifth and Sixth Amendments
to the States. The process by which
66
criminal defendants were brought to justice in 1791 largely
obviated the need for comments of the type the prosecutor made
here. Defendants routinely were asked (and agreed) to provide a
pretrial statement to a justice of the peace detailing the events
in dispute. See Moglen, The Privilege in British North America: The
Colonial Period to the Fifth Amendment, in The Privilege Against
Self-Incrimination 109, 112, 114 (R. Helmholz et al. eds. 1997). If
their story at trial-where they typically spoke and conducted their
defense personally, without counsel, see J. Goebel & T.
Naughton, Law Enforcement in Colonial New York: A Study in Criminal
Procedure (1664-1776), p. 574 (1944); A. Scott, Criminal Law in
Colonial Virginia 79 (1930)-differed from their pretrial statement,
the contradiction could be noted. See Levy, Origins of the Fifth
Amendment and Its Critics, 19 Cardozo L. Rev. 821, 843 (1997).
Moreover, what they said at trial was not considered to be
evidence, since they were disqualified from testifying under oath.
See 2 J. Wigmore, Evidence § 579 (3d ed. 1940).
The pretrial statement did not begin to fall into disuse until
the 1830's, see Alschuler, A Peculiar Privilege in Historical
Perspective, in The Privilege Against SelfIncrimination,
supra, at 198, and the first State to make defendants
competent witnesses was Maine, in 1864, see 2 Wigmore,
supra, § 579, at 701. In response to these developments,
some States attempted to limit a defendant's opportunity to tailor
his sworn testimony by requiring him to testify prior to his own
witnesses. See 3 J. Wigmore, Evidence §§ 1841, 1869 (1904); Ky.
Stat., ch. 45, § 1646 (1899); Tenn. Code Ann., ch. 4, § 5601
(1896). Although the majority of States did not impose such a
restriction, there is no evidence to suggest they also took the
affirmative step of forbidding comment upon the defendant's
opportunity to tailor his testimony. The dissent faults us for
"call[ing] up no instance of an 18th- or 19th-century prosecutor's
urging that a defendant's presence at trial facilitated tailored
testimony."
Post,
67
at 84 (opinion of GINSBURG, J.). We think the burden is rather
upon respondent and the dissent, who assert the unconstitutionality
of the practice, to come up with a case in which such urging was
held improper. They cannot even produce one in which the practice
was so much as
challenged until after our decision in
Griffin. See,
e. g., State v.
Cassidy, 236
Conn. 112, 126-127, 672 A. 2d 899, 907-908 (1996);
People v.
Buckey, 424 Mich. 1, 8-15, 378 N. W. 2d 432, 436439 (1985);
Jenkins v.
United States, 374 A. 2d 581, 583-584 (D.
C. 1977). This absence cuts in favor of respondent (as the dissent
asserts) only if it is possible to believe that after reading
Griffin prosecutors suddenly realized that commenting on a
testifying defendant's unique ability to hear prior testimony was a
good idea. Evidently, prosecutors were making these comments
all along without objection;
Griffin simply sparked the
notion that such commentary
might be problematic.
Lacking any historical support for the constitutional rights
that he asserts, respondent must rely entirely upon our opinion in
Griffin. That case is a poor analogue, however, for several
reasons. What we prohibited the prosecutor from urging the jury to
do in
Griffin was something
the jury is not permitted to
do. The defendant's right to hold the prosecution to proving
its case without his assistance is not to be impaired by the jury's
counting the defendant's silence at trial against him-and upon
request the court must instruct the jury to that effect. See
Carter v.
Kentucky, 450 U. S. 288 (1981). It is
reasonable enough to expect a jury to comply with that instruction
since, as we observed in
Griffin, the inference of guilt
from silence is not always "natural or irresistible." 380 U. S., at
615. A defendant might refuse to testify simply out of fear that he
will be made to look bad by clever counsel, or fear "'that his
prior convictions will prejudice the jury.'"
Ibid. (quoting
People v.
Modesto, 62 Cal. 2d 436, 453, 398 P. 2d
753, 763 (1965) (en banc)). By contrast, it
is natural and
irresistible for a jury, in evaluating
68
the relative credibility of a defendant who testifies last, to
have in mind and weigh in the balance the fact that he heard the
testimony of all those who preceded him. It is one thing (as
Griffin requires) for the jury to evaluate all the
other evidence in the case without giving any effect to the
defendant's refusal to testify; it is something else (and quite
impossible) for the jury to evaluate the credibility of the
defendant's testimony while blotting out from its mind the fact
that before giving the testimony the defendant had been sitting
there listening to the other witnesses. Thus, the principle
respondent asks us to adopt here differs from what we adopted in
Griffin in one or the other of the following respects: It
either prohibits inviting the jury to do what the jury is perfectly
entitled to do; or it requires the jury to do what is practically
impossible.1
1 The dissent seeks to place us in the position of defending the
proposition that inferences that the jury is free to make are
inferences that the prosecutor must be free to invite.
Post,
at 86-87. Of course we say no such thing. We simply say (in the
sentence to which this note is appended) that forbidding invitation
of a
permissible inference is one of two alternative
respects in which this case is substantially different from
respondent's sole source of support,
Griffin. Similarly, the
dissent seeks to place us in the position of defending the
proposition that it is more natural to infer tailoring from
presence than to infer guilt from silence.
Post, at 84-86.
The quite different point we do make is that inferring
opportunity to tailor from presence is inevitable, and
prohibiting that inference (while simultaneously asking the jury to
evaluate the veracity of the defendant's testimony) is demanding
the impossible-producing the other alternative respect in which
this case differs from
Griffin.
The dissent seeks to rebut this point by asserting that in the
present case the prosecutorial comments went beyond pointing out
the opportunity to tailor and actually made an accusation of
tailoring. It would be worth inquiring into that subtle distinction
if the dissent proposed to permit the former while forbidding the
latter. It does not, of course; nor, as far as we know, does any
other authority. Drawing the line between pointing out the
availability of the inference and inviting the inference would be
neither useful nor practicable. Thus, under the second alternative
described above, the jury must be prohibited from taking into
account the opportunity of tailoring.
69
Second,
Griffin prohibited comments that suggest a
defendant's silence is "evidence of
guilt." 380 U. S., at
615 (emphasis added); see also
United States v.
Robinson,
485 U. S. 25, 32 (1988) ("
'Griffin prohibits the judge
and prosecutor from suggesting to the jury that it may treat the
defendant's silence as substantive evidence of guilt'" (quoting
Baxter v.
Palmigiano, 425 U. S. 308, 319
(1976))). The prosecutor's comments in this case, by contrast,
concerned respondent's
credibility as a witness, and were
therefore in accord with our longstanding rule that when a
defendant takes the stand, "his credibility may be impeached and
his testimony assailed like that of any other witness."
Brown v.
United States, 356 U. S. 148, 154
(1958). "[W]hen [a defendant] assumes the role of a witness, the
rules that generally apply to other witnesses-rules that serve the
truthseeking function of the trial-are generally applicable to him
as well."
Perry v.
Leeke, 488 U. S. 272, 282
(1989). See also
Reagan v.
United States, 157 U. S. 301, 305
(1895).
Respondent points to our opinion in
Geders v.
United
States, 425 U. S.
80, 87-91 (1976), which held that the defendant must be treated
differently from other witnesses insofar as sequestration orders
are concerned, since sequestration for an extended period of time
denies the Sixth Amendment right to counsel. With respect to issues
of credibility, however, no such special treatment has been
accorded.
Jenkins v.
Anderson, 447 U. S. 231 (1980),
illustrates the point. There the prosecutor in a first-degree
murder trial, during cross-examination and again in closing
argument, attempted to impeach the defendant's claim of
self-defense by suggesting that he would not have waited two weeks
to report the killing if that was what had occurred. In an argument
strikingly similar to the one presented here, the defendant in
Jenkins claimed that commenting on his prearrest silence
violated his Fifth Amendment privilege against selfincrimination
because "a person facing arrest will not remain silent if his
failure to speak later can be used to impeach
70
him."
Id., at 236. The Court noted that it was not clear
whether the Fifth Amendment protects prearrest silence,
id.,
at 236, n. 2, but held that,
assuming it does, the
prosecutor's comments were constitutionally permissible. "[T]he
Constitution does not forbid 'every government-imposed choice in
the criminal process that has the effect of discouraging the
exercise of constitutional rights.'''
Id., at 236 (quoting
Chaffin v.
Stynchcombe, 412 U. S. 17, 30 (1973)).
Once a defendant takes the stand, he is "'subject to
crossexamination impeaching his credibility just like any other
witness.'''
Jenkins, supra, at 235-236 (quoting
Grunewald
Indeed, in
Brooks v.
Tennessee, 406 U. S. 605 (1972), the
Court suggested that arguing credibility to the jury-which would
include the prosecutor's comments here-is the preferred means of
counteracting tailoring of the defendant's testimony. In that case,
the Court found unconstitutional Tennessee's attempt to defeat
tailoring by requiring defendants to testify at the outset of the
defense or not at all. This requirement, it said, impermissibly
burdened the defendant's right to testify because it forced him to
decide whether to do so before he could determine that it was in
his best interest.
Id., at 610. The Court expressed its
awareness, however, of the danger that tailoring presented. The
antidote, it said, was not Tennessee's heavy-handed rule, but the
more nuanced "adversary system[, which] reposes judgment of the
credibility of all witnesses in the jury."
Id., at 611. The
adversary system surely envisions-indeed, it requiresthat the
prosecutor be allowed to bring to the jury's attention the danger
that the Court was aware of.
Respondent and the dissent also contend that the prosecutor's
comments were impermissible because they were "generic" rather than
based upon any specific indication of tailoring. Such comment, the
dissent claims, is unconstitutional because it "does not serve to
distinguish guilty defendants from innocent ones."
Post, at
77. But this Court has
71
approved of such "generic" comment before. In
Reagan, for
example, the trial court instructed the jury that "[t]he deep
personal interest which [the defendant] may have in the result of
the suit should be considered ... in weighing his evidence and in
determining how far or to what extent, if at all, it is worthy of
credit." 157 U. S., at 304. The instruction did not rely on any
specific evidence of actual fabrication for its application; nor
did it, directly at least, delineate the guilty and the innocent.
Like the comments in this case, it simply set forth a consideration
the jury was to have in mind when assessing the defendant's
credibility, which,
in turn, assisted it in determining the
guilt of the defendant. We deemed that instruction perfectly
proper. Thus, that the comments before us here did not, of their
own force, demonstrate the guilt of the defendant, or even
distinguish among defendants, does not render them infirm.2
Finally, the Second Circuit held, and the dissent contends, that
the comments were impermissible here because they were made, not
during cross-examination, but at summation,
2 The dissent's stern disapproval of generic comment (it
"tarnishes the innocent no less than the guilty,"
post, at
77-78; it suffers from an "incapacity to serve the individualized
truth-finding function of trials,"
post, at 80; so that
"when a defendant's exercise of a constitutional fair trial right
is 'insolubly ambiguous' as between innocence and guilt, the
prosecutor may not urge the jury to construe the bare invocation of
the right against the defendant,"
post, at 78) hardly
comports with its praising the Court of Appeals for its "carefully
restrained and moderate position" in forbidding this monstrous
practice only on summation and allowing it during the rest of the
trial,
ibid. The dissent would also allow a prosecutor to
remark at any time-even at summation--on the convenient "fit"
between specific elements of a defendant's testimony and the
testimony of others.
Ibid. It is only a "general accusation
of tailoring" that is forbidden.
Ibid. But if the dissent
believes that comments which "invite the jury to convict on the
basis of conduct as consistent with innocence as with guilt" should
be out of bounds,
post, at 79-or at least should be out of
bounds in summation-comments focusing on such "fit" must similarly
be forbidden. As the dissent acknowledges, "fit" is as likely to
result from the defendant's "sheer innocence" as from anything
else.
Post, at 85.
72
leaving the defense no opportunity to reply. 117 F. 3d, at 708,
and n. 6. That this is not a constitutionally significant
distinction is demonstrated by our decision in
Reagan. There
the challenged instruction came at the end of the case, after the
defense had rested, just as the prosecutor's comments did
here.3
Our trial structure, which requires the defense to close before
the prosecution, regularly forces the defense to predict what the
prosecution will say. Indeed, defense counsel in this case
explained to the jury that it was his job in "closing argument here
to try and anticipate as best [he could] some of the arguments that
the prosecution [would] be making." App. 25-27. What
Reagan
permitted-a generic
3 The dissent maintains that
Reagan v.
United
States, 157 U. S.
301 (1895), is inapposite to the question presented in this
case because it considered the effect of an interested-witness
instruction on a defendant's
statutory right to testify,
rather than on his
constitutional right to testify. See
id., at 304 (citing Act of Mar. 16, 1878, ch. 37,20 Stat.
30, as amended, 18 U. S. C. § 3481). That is a curious position for
the dissent to take.
Griffin-the case the dissent claims
controls the outcome here-relied almost exclusively on the very
statute at issue in
Reagan in defining the contours of the
Fifth Amendment right prohibiting comment on the failure to
testify. After quoting the Court's description, in an earlier case,
of the reasons for the statutory right, see
Wilson v.
United States, 149 U. S. 60 (1893), the
Griffin Court said: "If the words 'Fifth Amendment' are
substituted for 'act' and for 'statute,' the spirit of the
Self-Incrimination Clause is reflected." 380 U. S., at 613-614. It
is eminently reasonable to consider that a questionable manner of
constitutional exegesis, see
Mitchell v.
United
States, 526 U. S.
314, 336 (1999) (SCALIA, J., dissenting); it is not reasonable
to make
Griffin the very centerpiece of one's case while
simultaneously denying that the statute construed in
Reagan
(and
Griffin) has anything to do with the meaning of the
Constitution. The interpretation of the statute in
Reagan is
in fact a much
more plausible indication of constitutional
understanding than the application of the statute in
Griffin: The Constitution must have allowed what
Reagan said the statute permitted, because otherwise the
Court would have been interpreting the statute in a manner that
rendered it void.
Griffin, on the other hand, relied upon
the much shakier proposition that a practice which the statute
prohibited must be prohibited by the Constitution as
well.
73
interested-witness instruction,
after the defense has
closedis in a long tradition that continues to the present day.
See,
e. g., United States v.
Jones, 587 F.2d
802 (CAS 1979);
United States v.
Hill,
470 F.2d
361 (CADC 1972); 2 C. Wright, Federal Practice and
Procedure § 501, and n. 1 (1982). Indeed, the instruction was given
in this very case. See Tr. 834 ("A defendant is of course an
interested witness since he is interested in the outcome of the
trial. You may as jurors wish to keep such interest in mind in
determining the credibility and weight to be given to the
defendant's testimony").4 There is absolutely nothing to support
the dissent's contention that for purposes of determining the
validity of generic attacks upon credibility "the distinction
between crossexamination and summation is critical,"
post,
at 87.
In sum, we see no reason to depart from the practice of treating
testifying defendants the same as other witnesses. A witness's
ability to hear prior testimony and to tailor his account
accordingly, and the threat that ability presents to the integrity
of the trial, are no different when it is the defendant doing the
listening. Allowing comment upon the fact that a defendant's
presence in the courtroom provides him a unique opportunity to
tailor his testimony is appropriate-and indeed, given the inability
to sequester the defendant, sometimes essential-to the central
function of the trial, which is to discover the truth.
4 It is hard to understand how JUSTICE STEVENS reconciles the
unquestionable propriety of the standard interested-witness
instruction with his conclusion that comment upon the opportunity
to tailor, although it is constitutional, "demean[s] [the
adversary] process" and "should be discouraged."
Post, at 76
(opinion concurring in judgment). Our decision, in any event, is
addressed to whether the comment is permissible as a constitutional
matter, and not to whether it is always desirable as a matter of
sound trial practice. The latter question, as well as the
desirability of putting prosecutorial comment into proper
perspective by judicial instruction, are best left to trial courts,
and to the appellate courts which routinely review their work.
74
III
Finally, we address the Second Circuit's holding that the
prosecutor's comments violated respondent's Fourteenth Amendment
right to due process. Of course to the extent this claim is based
upon alleged burdening of Fifth and Sixth Amendment rights, it has
already been disposed of by our determination that those Amendments
were not infringed. Cf.
Graham v.
Connor, 490 U. S. 386, 395 (1989)
(where an Amendment "provides an explicit textual source of
constitutional protection ... that Amendment, not the more
generalized notion of 'substantive due process,' must be the guide
for analyzing [the] claims").
Respondent contends, however, that because New York law required
him to be present at his trial, see N. Y. Crim. Proc. Law § 260.20
(McKinney 1993); N. Y. Crim. Proc. Law § 340.50 (McKinney 1994),
the prosecution violated his right to due process by commenting on
that presence. He asserts that our decision in
Doyle v.
Ohio, 426 U.
S. 610 (1976), requires such a holding. In
Doyle, the
defendants, after being arrested for selling marijuana, received
their
Miranda warnings and chose to remain silent. At their
trials, both took the stand and claimed that they had not sold
marijuana, but had been "framed." 426 U. S., at 613. To impeach the
defendants, the prosecutors asked each why he had not related this
version of events at the time he was arrested. We held that this
violated the defendants' rights to due process because the
Miranda warnings contained an implicit "assurance that
silence will carry no penalty." 426 U. S., at 618.
Although there might be reason to reconsider
Doyle, we
need not do so here. "[WJe have consistently explained
Doyle
as a case where the government had induced silence by implicitly
assuring the defendant that his silence would not be used against
him."
Fletcher v.
Weir, 455 U. S. 603, 606 (1982)
(per curiam). The
Miranda warnings had, after all,
specifically given the defendant both the option of speaking and
the option of remaining silent-and had then gone
75
on to say that if he chose the former option what he said could
be used against him. It is possible to believe that this contained
an implicit promise that his choice of the option of silence would
not be used against him. It is not possible, we think, to
believe that a similar promise of impunity is implicit in a statute
requiring the defendant to be present at trial.
Respondent contends that this case contains an element of
unfairness even worse than what existed in
Doyle: Whereas
the defendant in that case had the ability to avoid impairment of
his case by choosing to speak rather than remain silent, the
respondent here (he asserts) had no choice but to be present at the
trial. Though this is far from certain, see,
e. g., People
v.
Aiken, 45 N. Y. 2d 394, 397, 380 N. E. 2d 272, 274 (1978)
("[A] defendant charged with a felony not punishable by death may,
by his voluntary and willful absence from trial, waive his right to
be present at every stage of his trial"), we shall assume for the
sake of argument that it is true. There is, however, no authority
whatever for the proposition that the impairment of credibility, if
any, caused by mandatory presence at trial violates due process. If
the ability to avoid the accusation (or suspicion) of tailoring
were as crucial a factor as respondent contends, one would expect
criminal defendants-in jurisdictions that do not have compulsory
attendance requirements-frequently to absent themselves from trial
when they intend to give testimony. But to our knowledge, a
criminal trial without the defendant present is a rarity. Many long
established elements of criminal procedure deprive a defendant of
advantages he would otherwise possess-for example, the requirement
that he plead to the charge before, rather than after, all the
evidence is in. The consequences of the requirement that he be
present at trial seem to us no worse.
***
For the foregoing reasons, the judgment of the Court of Appeals
for the Second Circuit is reversed, and the case
76
is remanded for further proceedings consistent with this
opinion.
It is so ordered.
JUSTICE STEVENS, with whom JUSTICE BREYER joins, concurring in
the judgment.
While I am not persuaded that the prosecutor's summation crossed
the high threshold that separates trial error-even serious trial
error-from the kind of fundamental unfairness for which the
Constitution requires that a state criminal conviction be set
aside, cf.
Rose v.
Lundy, 455 U. S. 509, 543-544
(1982), I must register my disagreement with the Court's implicit
endorsement of her summation.
The defendant's Sixth Amendment right "to be confronted with the
witnesses against him" serves the truth-seeking function of the
adversary process. Moreover, it also reflects respect for the
defendant's individual dignity and reinforces the presumption of
innocence that survives until a guilty verdict is returned. The
prosecutor's argument in this case demeaned that process, violated
that respect, and ignored that presumption. Clearly such comment
should be discouraged rather than validated.
The Court's final conclusion, which I join, that the argument
survives constitutional scrutiny does not, of course, deprive
States or trial judges of the power either to prevent such argument
entirely or to provide juries with instructions that explain the
necessity, and the justifications, for the defendant's attendance
at trial.
Accordingly, although I agree with much of what JUSTICE GINSBURG
has written, I concur in the Court's judgment.
JUSTICE GINSBURG, with whom JUSTICE SOUTER joins,
dissenting.
The Court today transforms a defendant's presence at trial from
a Sixth Amendment right into an automatic burden on his
credibility. I dissent from the Court's disposition. In
77
Griffin v.
California, 380 U. S. 609 (1965), we
held that a defendant's refusal to testify at trial may not be used
as evidence of his guilt. In
Doyle v.
Ohio, 426 U. S. 610 (1976), we
held that a defendant's silence after receiving
Miranda
warnings did not warrant a prosecutor's attack on his credibility.
Both decisions stem from the principle that where the exercise of
constitutional rights is "insolubly ambiguous" as between innocence
and guilt,
id., at 617, a prosecutor may not unfairly
encumber those rights by urging the jury to construe the ambiguity
against the defendant.
The same principle should decide this case. Ray Agard attended
his trial, as was his constitutional right and his statutory duty,
and he testified in a manner consistent with other evidence in the
case. One evident explanation for the coherence of his testimony
cannot be ruled out: Agard may have been telling the truth. It is
no more possible to know whether Agard used his presence at trial
to figure out how to tell potent lies from the witness stand than
it is to know whether an accused who remains silent had no
exculpatory story to tell.
The burden today's decision imposes on the exercise of Sixth
Amendment rights is justified, the Court maintains, because "the
central function of the trial ... is to discover the truth." See
ante, at 73. A trial ideally is a search for the truth, but
I do not agree that the Court's decision advances that search. The
generic accusation that to day's decision permits the prosecutor to
make on summation does not serve to distinguish guilty defendants
from innocent ones. Every criminal defendant, guilty or not, has
the right to attend his trial. U. S. Const., Arndt. 6. Indeed, as
the Court grants,
ante, at 74, New York law
requires
defendants to be present when tried. It follows that every
defendant who testifies is equally susceptible to a generic
accusation about his opportunity for tailoring. The prosecutorial
comment at issue, tied only to the defendant's presence in the
courtroom and not to his actual testimony, tarnishes the innocent
no
78
less than the guilty. Nor can a jury measure a defendant's
credibility by evaluating the defendant's response to the
accusation, for the broadside is fired after the defense has
submitted its case. An irrebuttable observation that can be made
about any testifying defendant cannot sort those who tailor their
testimony from those who do not, much less the guilty from the
innocent.
I
The Court of Appeals took a carefully restrained and moderate
position in this case. It held that a prosecutor may not, as part
of her summation, use the mere fact of a defendant's presence at
his trial as the basis for impugning his credibility. A prosecutor
who wishes at any stage of a trial to accuse a defendant of
tailoring specific elements of his testimony to fit with particular
testimony given by other witnesses would, under the decision of the
Court of Appeals, have leave to do so. See
159
F.3d 98, 99
(CA2 1998). Moreover, on cross-examination,
a prosecutor would be free to challenge a defendant's overall
credibility by pointing out that the defendant had the opportunity
to tailor his testimony in general, even if the prosecutor could
point to no facts suggesting that the defendant had actually
engaged in tailoring. See
117 F.3d
696, 708, n. 6
(CA2 1997). The Court of Appeals held
only that the prosecutor may not launch a general accusation of
tailoring on summation. See
id., at 709; see also
United
States v.
Chacko, 169 F.3d
140,
150 (CA2 1999). Thus, the decision below would rein
in a prosecutor solely in situations where there is no particular
reason to believe that tailoring has occurred and where the
defendant has no opportunity to rebut the accusation.
The Court of Appeals' judgment was correct in light of
Griffin and
Doyle. Those decisions instruct that when
a defendant's exercise of a constitutional fair trial right is
"insolubly ambiguous" as between innocence and guilt, the
prosecutor may not urge the jury to construe the bare invocation of
the right against the defendant. See
Doyle, 426 U. S.,
at
79
617. To be sure, defendants are not categorically exempt from
some costs associated with the assertion of their constitutional
prerogatives. The Court is correct to say that the truth-seeking
function of trials places demands on defendants. In a proper case,
that central function could justify a particular burden on the
exercise of Sixth Amendment rights. But the interests of truth are
not advanced by allowing a prosecutor, at a time when the defendant
cannot respond, to invite the jury to convict on the basis of
conduct as consistent with innocence as with guilt. Where burdening
a constitutional right will not yield a compensating benefit, as in
the present case, there is no justification for imposing the
burden.
The truth-seeking function of trials may be served by permitting
prosecutors to make accusations of tailoring-even wholly generic
accusations of tailoring-as part of crossexamination. Some
defendants no doubt do give false testimony calculated to fit with
the testimony they hear from other witnesses. If accused on
cross-examination of having tailored their testimony, those
defendants might display signals of untrustworthiness that it is
the province of the jury to detect and interpret. But when a
generic argument is offered on summation, it cannot in the
slightest degree distinguish the guilty from the innocent. It
undermines all defendants equally and therefore does not help
answer the question that is the essence of a trial's search for
truth: Is this particular defendant lying to cover his guilt or
truthfully narrating his innocence? 1
1 The prosecutor made the following comment on summation: "A lot
of what [the defendant] told you corroborates what the complaining
witnesses told you. The only thin[g] that doesn't is the denials of
the crimes. Everything else fits perfectly." App. 46-47. That,
according to the prosecution, is reason for the jury to be
suspicious that the defendant falsely tailored his testimony. The
implication of this argument seems to be that the more a
defendant's story hangs together, the more likely it is that he is
lying. To claim that such an argument helps find truth at trial is
to step completely through the looking glass.
80
In addition to its incapacity to serve the individualized
truth-finding function of trials, a generic tailoring argument
launched on summation entails the simple unfairness of preventing a
defendant from answering the charge. This problem was especially
pronounced in the instant case. Under New York law, defendants
generally may not bolster their own credibility by introducing
their prior consistent statements but may introduce such statements
to rebut claims of recent fabrication. See
People v.
McDaniel, 81 N. Y. 2d 10, 16, 611 N. E. 2d 265, 268 (1993);
117 F. 3d, at 715 (Winter, C. J., concurring). Had the prosecution
made its tailoring accusations on cross-examination, Agard might
have been able to prove that his story at trial was the same as it
had been before he heard the testimony of other witnesses. A
prosecutor who can withhold a tailoring accusation until summation
can avert such a rebuttal.
The Court's only support for its choice to ignore the
distinction between summation and cross-examination is
Reagan v.
United States, 157 U. S. 301 (1895), a
decision which, by its very terms, does not bear on today's
constitutional controversy. It is true, as the Court says, that
Reagan upheld a trial judge's instruction that questioned
the credibility of a testifying defendant in a generic manner, and
it is also true that a defendant is no more able to respond to an
instruction than to a prosecutor's summation. But
Reagan has
no force as precedent for this case because, in the 1895 Court's
view, the instruction there at issue did not burden any
constitutional right of the defendant.
The trial court in
Reagan instructed the jury that when
it evaluated the credibility of the defendant's testimony, it could
consider that defendants have a powerful interest in being
acquitted, powerful enough that it might induce some people to lie.
See
id., at 304-305. This instruction burdened the
defendant's right to testify at his own trial. But the Court that
decided
Reagan conceived of that right as one dependent on a
statute, not on any constitutional pre scrip-
81
tion. See
id., at 304 (defendant was qualified to testify
under oath pursuant to an 1878 Act of Congress, ch. 37, 20 Stat.
30, which removed the common-law disability that had previously
prevented defendants from giving sworn testimony). No one in that
19th-century case suggested that the trial court's comment exacted
a penalty for the exercise of any constitutional right.2 It is thus
inaccurate for the Court to portray
Reagan as precedent for
the proposition that the difference between summation and
cross-examination "is not a constitutionally significant
distinction."
Ante, at 72.
Reagan made no
determination of constitutional significance or insignificance, for
it addressed no constitutional question.
The Court endeavors to bring
Reagan within constitutional
territory by yoking it to
Griffin. The Court asserts that
Griffin relied on the very statute that defined the rights
of the defendant in
Reagan and that
Griffin's holding
makes sense only if the statute in
Reagan carries
constitutional implications.
Ante, at 72, n. 3. This
argument is flawed in its premise, because
Griffin rested
solidly on the Fifth Amendment. The Court in
Griffin did
refer to the 1878 statute at issue in
Reagan, but it did so
only in connection with its discussion of
Wilson v.
United States, 149 U. S. 60 (1893), a
decision construing a different provision of that statute to
prohibit federal prosecutors from commenting to juries on
defendants' failure to testify. See
Griffin, 380 U. S., at
612613. The statute at issue in
Reagan and
Wilson,
now codified at 18 U. S. C. § 3481, provides that defendants in
criminal trials have both the right to testify and the right
not
2 The offense charged in
Reagan was, moreover, a
misdemeanor rather than a felony. See 157 U. S., at 304. Even
today, our cases recognize a distinction between serious and petty
crimes, and we have held that some provisions of the Sixth
Amendment do not apply in petty prosecutions. See,
e. g.,
Lewis v.
United States, 518 U. S. 322 (1996)
(right to jury trial does not attach in trials for petty offenses).
The
Reagan Court classified the case before it as belonging
to the less serious category of offenses and explicitly denied the
defendant the heightened procedural protections that attached in
trials for more serious crimes. See 157 U. S., at 302-304.
82
to testify.
Reagan concerned the former right,
Wilson the latter right, and
Griffin the
constitutional analogue to the latter right. If the Court in
Griffin had regarded the statute as settling the meaning of
the Fifth Amendment-an odd position to imagine the Court
taking-then it could have rested on
Wilson. It did not. It
said that
Wilson would govern were the question presented a
statutory one, but that the question before it was constitutional:
"The question remains whether,
statute or not, the comment
... violates the Fifth Amendment." 380 U. S., at 613 (emphasis
added). Thus, the question in
Griffin was not controlled by
Wilson precisely because the statute construed in
Wilson and
Reagan was just that-a statute-and not a
provision of the Constitution. Accordingly,
Griffin provides
no support for the Court's unorthodox contention that
Reagan's statutory holding was actually of constitutional
dimension.3
II
The Court offers two arguments in support of its conclusion that
a prosecutor may make the generic tailoring accusations at issue in
this case. First, it suggests that such comment has historically
not been seen as problematic.
3 I do not question the constitutionality of an instruction in
which a trial court generally advises the jury that in evaluating
the credibility of witnesses, it may take account of the interest
of any witness, including the defendant, in the outcome of a case.
The interested-witness instruction given in Agard's case was of
this variety. The trial court first told the jury that it should
consider the interest that any interested witness might have in the
outcome. See Tr. 834 ("If you find that any witness is an
interested witness, you should consider such interest in
determining the credibility of that person's testimony and the
weight to be given to it."). It then went on to note, as the Court
reports,
ante, at 73, that the defendant is an interested
witness. See Tr. 834. Any instruction generally applicable to
witnesses will affect defendants who testify, just as the rules
governing the admissibility of testimony at trial will restrict
defendants' testimony as they do the testimony of other witnesses.
It is a far different matter for an instruction or an argument to
impose unique burdens on defendants.
83
Second, it contends that respondent Agard's case is readily
distinguishable from
Griffin. The Court's historical
excursus does not even begin to prove that comments like those in
this case have ever been accepted as constitutional, and the
attempt to distinguish
Griffin relies on implausible
premises that this Court has previously rejected.
The Court's historical narrative proceeds as follows: In the
early days of the Republic, prosecutors had no "need" to suggest
that defendants might use their presence at trial to tailor their
testimony, because defendants' (unsworn) statements at trial could
be compared with pretrial statements that defendants gave as a
matter of course. Later, some States instituted rules requiring
defendants to testify before the other witnesses did,4 thus
obviating once again any need to make arguments about tailoring.
There is no evidence, the Court says, that any State ever
prohibited the kind of generic argument now at issue until recent
times.5 So it must be the case that generic tailoring arguments
have traditionally been thought unproblematic.
Ante, at
65-66.
4 In
Brooks v.
Tennessee, 406 U. S. 605 (1972), we
held this practice unconstitutional under the Fifth and Fourteenth
Amendments.
5 In recent years, several state courts have found it improper
for prosecutors to make accusations of tailoring based on the
defendant's constant attendance at trial. See,
e. g., State
v.
Cassidy, 236 Conn. 112, 672 A. 2d 899 (1996);
State v.
Jones, 580 A. 2d 161, 163 (Me. 1990);
Hart v.
United States, 538 A. 2d 1146, 1149 (D. C.
1988);
State v.
Hemingway, 148 Vt. 90, 91-92,528 A.
2d 746, 747-748 (1987);
Commonwealth v.
Person, 400
Mass. 136, 138-142, 508 N. E. 2d 88, 90-92 (1987);
State v.
Johnson, 80 Wash. App. 337, 908 P. 2d 900 (1996). In
Commonwealth v.
Elberry, 38 Mass. App. 912, 645 N. E.
2d 41 (1995), the trial judge sustained defense counsel's objection
to a prosecutor's tailoring argument that burdened the defendant's
right to be present at trial and issued the following curative
instruction: "Of course, the defendant, who was a witness in this
case, was here during the testimony of other witnesses, but he's
got every right to be here, too .... [Y]ou should take everything
into consideration in determining credibility, but there is nothing
untoward about the defendant being present when other witnesses are
testifying."
Id., at 913, 645 N. E. 2d, at 43.
84
I do not comprehend why the Court finds in this account any
demonstration that the prosecutorial comment at issue here has a
long history of unchallenged use. If prosecutors in times past had
no need to make generic tailoring arguments, it is likely such
arguments simply were not made. Notably, the Court calls up no
instance of an 18th- or 19thcentury prosecutor's urging that a
defendant's presence at trial facilitated tailored testimony. And
if prosecutors did not make such arguments, courts had no occasion
to rule them out of order. The absence of old cases prohibiting the
comment that the Court now confronts thus scarcely indicates that
generic accusations of tailoring have long been considered
constitutional.
The Court's discussion of
Griffin is equally
unconvincing.
The Court posits that a ban on inviting juries to draw adverse
inferences from a defendant's
silence differs materially
from a ban on inviting juries to draw adverse inferences from a
defendant's
presence, because the inference from silence "is
not ... 'natural or irresistible.'" See
ante, at 67
(quoting
Griffin, 380 U. S., at 615) (emphasis added by
majority). This is a startling statement. It fails to convey what
the Court actually said in
Griffin, which was that the
inference from silence to guilt is "not
always so natural or
irresistible." See
ibid. (emphasis added). The statement
that an inference is not
always natural or irresistible
implies that the inference is indeed natural or irresistible in
many, perhaps most, cases. And so it is. See
Mitchell v.
United States, 526 U. S. 314, 332 (1999)
(SCALIA, J., dissenting) (The
Griffin rule "runs exactly
counter to normal evidentiary inferences:
If I ask my son whether he saw a movie I had forbidden him to
watch, and he remains silent, the import of his silence is
clear.");
Lakeside v.
Oregon, 435 U. S. 333, 340 (1978)
(It is "very doubtful" that jurors, left to their own devices,
would not draw adverse inferences from a defendant's failure to
testify.). It is precisely because the inference is often natural
(but nonetheless prohibited) that the jury, if a defendant so
85
requests, is instructed not to draw it.
Carter v.
Kentucky, 450
U. S. 288, 301-303 (1981) (An uninstructed jury is likely to
draw adverse inferences from a defendant's failure to testify, so
defendants are entitled to have trial courts instruct juries that
no such inference may be drawn.).
The inference involved in
Griffin is at least as
"natural" or "irresistible" as the inference the prosecutor in
Agard's case invited the jury to draw. There are, to be sure,
reasons why an innocent defendant might not want to testify.
Perhaps he fears that his convictions for prior crimes will
generate prejudice against him if placed before the jury; perhaps
he has an unappealing countenance that could produce the same
effect; perhaps he worries that cross-examination will drag into
public view prior conduct that, though not unlawful, is deeply
embarrassing. For similar reasons, an innocent person might choose
to remain silent after arrest. But in either the
Griffin
scenario of silence at trial or the
Doyle scenario of
silence after arrest, something beyond the simple innocence of the
defendant must be hypothesized in order to explain the defendant's
behavior.
Not so in the present case. If a defendant appears at trial and
gives testimony that fits the rest of the evidence, sheer innocence
could explain his behavior completely. The inference from silence
to guilt in
Griffin or from silence to untrustworthiness in
Doyle is thus more direct than the inference from presence
to tailoring.6 Unless one has prejudged
6 The Court describes the inference now at issue as one not from
presence to tailoring but merely from presence to
opportunity to tailor.
Ante, at 71, n. 2. The
proposition that Agard simply had the opportunity to tailor, we
note, is not what the prosecutor urged upon the jury. She
encouraged the jury to draw, from the
fact of Agard's
opportunity, the
inference that he had actually tailored his
testimony. See App. 49 (Defendant was able "to sit here and listen
to the testimony of all the other witnesses before he testifie[d]
.... [He got] to sit here and think what am I going to say and how
am I going to say it? How am I going to fit it into the evidence?
... He's a smart man .... He used everything to his
advantage.")
86
the defendant as guilty, or unless there are specific reasons to
believe that particular testimony has been altered, the possibility
that the defendant is telling the truth is surely as good an
explanation for the coherence of the defendant's testimony as any
that involves wrongful tailoring. I therefore disagree with the
Court's assertion,
ante, at 68, that the Court of Appeals'
decision in Agard's case differs from our decision in
Griffin by "requir[ing] the jury to do what is practically
impossible." 7 It makes little sense to maintain that juries able
to avoid drawing adverse inferences from a defendant's silence
would be unable to avoid thinking that only a defendant's
opportunity to spin a web of lies could explain the seamlessness of
his testimony.
The Court states in the alternative that if proscribing generic
accusations of tailoring at summation does not require the jury to
do the impossible, then it prohibits prosecutors from "inviting the
jury to do what the jury is perfectly entitled to do."
Ante,
at 68. The Court offers no prior authority, however, for the
proposition that a jury may constitutionally draw the inference now
at issue. The Second Circuit thought the matter open, and
understandably so in light of
Griffin and
Carter. But
even if juries were permitted to draw the inference in question, it
would not follow that prosecutors could urge juries to draw it.
Doyle prohibits prosecutors from urging juries to draw
adverse inferences from a defendant's choice to remain silent after
re-
7 In fact, the Court of Appeals' decision in Agard's case does
not tell juries to do
anything; it merely prevents
prosecutors from inviting them to do something. I presume that the
Court means to say that the Court of Appeals' decision prohibits
prosecutors from inviting juries to do something jurors will
inevitably do even without invitation. In either case, however, the
Court's confidence that all juries will naturally regard the
defendant's presence at trial as a reason to be suspicious of his
testimony is perplexing in light of the Court's equal confidence
that allowing comment on the same subject is "essential" to the
truth-finding function of the trial. See
ante, at 73. If all
juries think this anyway, the pursuit of truth will not suffer if
they are not told to think it.
87
ceiving
Miranda warnings, but the Court today shows no
readiness to say that juries may not draw that inference
themselves. See
ante, at 74-75. It therefore seems
unproblematic to hold that a prosecutor's latitude for argument is
narrower than a jury's latitude for assessment.
In its final endeavor to distinguish the two inferences, the
Court maintains that the one in
Griffin goes to a
defendant's guilt but the one now at issue goes merely to a
defendant's credibility as a witness. See
ante, at 69. But
it is dominantly in cases where the physical evidence is
inconclusive that prosecutors will concentrate all available
firepower on the credibility of a testifying defendant. Argument
that goes to the defendant's credibility in such a case also goes
to guilt. Indeed, the first sentence of the Court's account of the
trial in this case acknowledges that the questions of guilt and
credibility were coextensive. See
ante, at 63 (Agard's trial
"ultimately came down to a credibility determination.").
The Court emphasizes that a prosecutor may make an issue of a
defendant's credibility, and it points for support to our decisions
in
Jenkins v.
Anderson, 447 U. S. 231 (1980), and
Brooks v.
Tennessee, 406 U. S. 605 (1972). See
ante, at 69-70. But again, the distinction between
cross-examination and summation is critical. Cross-examination is
the criminal trial's primary means of contesting the credibility of
any witness, and a defendant who is also a witness may of course be
cross-examined.
Jenkins supports the proposition that
cross-examination is of sufficient value as an aid to finding truth
at trial that prosecutors may sometimes question defendants even
about matters that may touch on their constitutional rights, and
Brooks suggests that cross-examination can expose a
defendant who tailors his testimony. See
Jenkins, 447 U. S.,
at 233, 238;
Brooks, 406 U. S., at 609-612. Thus the
prosecutor's tactics in
Jenkins and our own counsel in
Brooks are entirely consistent with the moderate restriction
on prosecutoriallicense that the Court today rejects.
88
***
In the end, we are left with a prosecutorial practice that
burdens the constitutional rights of defendants, that cannot be
justified by reference to the trial's aim of sorting guilty
defendants from innocent ones, and that is not supported by our
case law. The restriction that the Court of Appeals placed on
generic accusations of tailoring is both moderate and warranted.
That court declared it permissible for the prosecutor to comment on
"what the defendant testified to regarding pertinent events"-"the
fit between the testimony of the defendant and other witnesses."
159 F. 3d, at 99. What is impermissible, the Second Circuit held,
is simply and only a summation "bolstering ... the prosecution
witnesses' credibility vis-a-vis the defendant's based solely on
the defendant's exercise of a constitutional right to be present
during the trial."
Ibid. I would affirm that sound judgment
and therefore dissent from the Court's disposition.
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