Prosecutor allowed to note defendant's chance to tailor testimony
By Richard Carelli, Associated Press, 03/06/00
WASHINGTON - Prosecutors are free to tell jurors that defendants' courtroom presence during a trial allows them to tailor their testimony to fit the evidence, the Supreme Court ruled today.
The 7-2 decision in a New York case said such comments by prosecutors to juries do not violate defendants' right to attend their trial and testify in their own defense.
"We see no reason to depart from the practice of treating testifying defendants the same as other witnesses," Justice Antonin Scalia wrote for the court.
"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 ... sometimes essential to the central function of the trial, which is to discover the truth," he said.
The court's dissenters said the ruling "transforms a defendant's presence at trial from a Sixth Amendment right into an automatic burden on his credibility."
The decision reversed a federal appeals court ruling that barred prosecutors from making general attacks on the credibility of defendants for being present at a trial.
Ray Agard of Queens in New York City was convicted in 1991 of sodomy and weapons possession and was sentenced to 10 to 20 years in prison. He testified in his own defense at his state court trial, saying he had consensual sex with the woman who accused him.
During closing arguments, the prosecutor told jurors that unlike other witnesses, Agard was allowed to be in court and hear all the other testimony before he took the witness stand.
"That gives you a big advantage, doesn't it?" the prosecutor said. "You get to sit here and think, 'What am I going to say ... how am I going to fit it into the evidence?"'
Agard appealed, relying on a 1965 Supreme Court decision that said prosecutors cannot refer to a defendant's decision not to testify as an indication of guilt. Such statements by prosecutors would violate defendants' right not to incriminate themselves, guaranteed by the Constitution's Fifth Amendment, the court ruled in 1965.
A federal judge ruled against Agard. But the 2nd U.S. Circuit Court of Appeals said the prosecutor's argument violated his Fifth Amendment right to testify in his own defense and his Sixth Amendment right to attend the trial.
Today's decision said the 1965 ruling should not control Agard's case.
The 35-year-old ruling "prohibits a judge and prosecutor from suggesting to the jury that it may treat the defendant's silence as substantive evidence of guilt," Scalia said. "The prosecutor's comments in this case, by contrast, concerned (Agard's) credibility as a witness, and therefore were 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."
Scalia said the prosecutor's decision to wait until her closing argument, rather than during cross-examination, to mention Agard's "advantage" made no difference.
He was joined by Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Anthony M. Kennedy and Clarence Thomas.
Justices John Paul Stevens and Stephen G. Breyer agreed that the appeals court was wrong but did not join the majority's opinion.
Justices Ruth Bader Ginsburg and David H. Souter dissented. Writing for the two, Ginsburg said, "The generic accusation that today's decision permits ... does not serve to distinguish guilty defendants from innocent ones. Every criminal defendant, guilty or not, has the right to attend his trial."
The case is Portuondo vs. Agard, 98-1170.
