Lead Opinion
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
“You know, ladies and gentlemen, unlike all the other witnesses in this ease 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,
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
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,
argument down to a request that we extend to comments of the type the prosecutor made here the rationale of Griffin v. California,
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
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 Self-Incrimination, 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., eh. 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 “calling] up no instance of an 18th- or 19th-century prosecutor’s urging that a defendant’s presence at trial facilitated tailored testimony.” Post,
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,
Respondent points to our opinion in Geders v. United States,
Indeed, in Brooks v. Tennessee,
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
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,
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
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.
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,
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,
Although there might be reason to reconsider Doyle, we need not do so here. “[W]e 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,
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,
* * *
For the foregoing reasons, the judgment of the Court of Appeals for the Second Circuit is reversed, and the case
It is so ordered.
Notes
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 ease 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.
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.
The dissent maintains that Reagan v. United States,
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.
Dissenting Opinion
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
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.
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 today’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
I
The Court of Appeals took a carefully restrained and moderate position in this ease. 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
The Court of Appeals’ judgment was correct in light of Griffin and Doy le. 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
trials may be served by permitting prosecutors to make accusations of tailoring — even wholly generic accusations of tailoring — as part of cross-examination. 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?
The Court’s only support for its choice to ignore the distinction between summation and cross-examination is Reagan v. United States,
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 prescrip
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,
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.
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,
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,
inference involved in Griffin is at least as “natural” or “irresistible” as the inference the prosecutor in Agard’s ease 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 un-trustworthiness in Doyle is thus more direct than the inference from presence to tailoring.
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
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.”).
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,
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. 8d, 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.
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.
The offense charged in Reagan was, moreover, a misdemeanor rather than a felony. See
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 affeet 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.
In Brooks v. Tennessee,
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,
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 testifiefd].... [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.”)
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.
Concurrence Opinion
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,
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.