Portuondo v. Agard

Background

This case involved Ray Agard, who was tried in New York on sexual-assault and weapons charges. The trial turned on whether jurors believed the victim and a friend or Agard, who testified last. During closing, the prosecutor told jurors that Agard had the chance to hear other witnesses and could shape his story. The trial court allowed the comment, Agard was convicted, a federal appeals court reversed, and the Supreme Court agreed to decide the issue.

Reasoning

The Court asked whether that summation remark violated Agard’s rights under the Fifth, Sixth, or Fourteenth Amendments. The majority declined to extend the rule from Griffin v. California, which forbids using a defendant’s silence against him, because Griffin dealt with a different and uniquely coercive situation. The Court said comments about a testifying defendant’s credibility are treated like attacks on any other witness and are historically and legally acceptable, even if the comment is generic and made in closing argument. The Court therefore reversed the Second Circuit.

Real world impact

After this decision, prosecutors may point out that a defendant who testifies heard earlier testimony and could have tailored answers. Trial judges still can limit or discourage such arguments, give instructions, or take other steps to protect fairness. Criminal defendants who testify should expect credibility attacks about tailoring as part of the prosecutor’s case.

Dissents or concurrances

Justice Stevens agreed with the result but criticized the prosecutor’s tone and urged discouragement of such arguments. Justice Ginsburg (joined by Souter) dissented, warning the rule burdens a defendant’s right to be present and unfairly tarnishes innocent witnesses.