Portuondo v. Agard
The Court ruled that a prosecutor may point out, even in closing argument, that a testifying defendant had the chance to hear all the other witnesses before testifying and could have shaped his story to match theirs.
The decision refused to extend an earlier ruling that barred prosecutors from commenting on a defendant's silence, reasoning that commenting on a defendant's credibility as a witness is fundamentally different from commenting on his refusal to testify at all.
“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 heard the testimony of all those who preceded him”
Explaining why the inference from a defendant's presence differs from the inference from silence in Griffin.
How it got here: A federal trial court denied Agard's habeas petition, the Second Circuit reversed in his favor, and the State asked the Supreme Court to review that reversal.
The Case in Depth
What happened
Ray Agard was tried in New York on sodomy, assault, and weapons charges after a woman and her friend accused him of rape and assault at gunpoint; Agard testified the sex was consensual and denied using a gun. During closing argument, the prosecutor told the jury that, unlike other witnesses, Agard had the advantage of hearing everyone else testify before giving his own account, suggesting he used that opportunity to tailor his story.
The question before the Court
Can a prosecutor tell the jury, during closing argument, that a testifying defendant got to hear every other witness before giving his own testimony?
Why it matters
Prosecutors nationwide can now argue in summation that a defendant's presence throughout trial gave him an unfair edge in crafting believable testimony, without pointing to any specific evidence of actual fabrication. Defendants who choose to testify last lose a potential shield against this kind of generic credibility attack, shifting more of the burden onto defense counsel to preempt or rebut such arguments before the jury deliberates.
What changes now
This is a final merits decision that resolves the constitutional question directly. The Second Circuit's ruling for Agard is reversed, and the case goes back to that court for further proceedings consistent with the Supreme Court's holding that the prosecutor's comments were lawful. The ruling leaves states and trial judges free to limit or regulate such prosecutorial comments through their own rules or jury instructions, even though the Constitution does not require it.
What this does not decide
The Court did not decide whether such comments are good trial practice, only that they are constitutionally permissible; it expressly left states and trial judges free to prohibit or limit the comments through their own rules or jury instructions if they choose to do so.
Concurrences and dissents
Concurrence — Justice Stevens
Justice Stevens agreed the comments did not amount to the kind of fundamental unfairness that requires overturning a conviction, but he disagreed with what he saw as the majority's implicit endorsement of the tactic. He argued the comments demeaned the confrontation right's truth-seeking purpose and disrespected the defendant's dignity and presumption of innocence, and said such arguments should be discouraged even though they are constitutional.
Dissent — Justice Ginsburg
“The Court today transforms a defendant's presence at trial from a Sixth Amendment right into an automatic burden on his credibility.”Ginsburg's central objection to allowing generic tailoring accusations in summation.
Justice Ginsburg argued the majority turned a defendant's right to be present at trial into an automatic burden on his credibility. She said generic tailoring accusations, unlike targeted ones, cannot distinguish guilty from innocent defendants and unfairly strike after the defense has already rested, denying any chance to rebut. She would have upheld the Second Circuit's narrower rule allowing such arguments only on cross-examination or when tied to specific evidence.
How the Court got there
The legal reasoning, step by step
- The Court measured the prosecutor's comments against Griffin v. California, which barred prosecutors from telling juries to treat a defendant's silence as evidence of guilt because that inference is not always 'natural or irresistible.'
- The Court found Griffin a poor fit here because it is impossible for a jury evaluating a defendant's credibility to ignore the plain fact that he sat through and heard all prior testimony before speaking himself — unlike the inference from silence, this inference is unavoidable rather than optional.
- The Court applied its longstanding rule that once a defendant chooses to testify, his credibility can be attacked like that of any other witness, because doing so serves the trial's basic truth-seeking function rather than penalizing the exercise of a constitutional right.
- Relying on Reagan v. United States, where the Court had approved a generic 'interested witness' instruction given after the defense rested, the Court concluded that a comment need not be tied to specific evidence of fabrication, nor come early enough for the defense to respond, to be constitutionally permissible.
- Turning to the due process claim, the Court concluded that a state law requiring a defendant's presence at trial carries no implicit promise, unlike Miranda warnings in Doyle v. Ohio, that his presence will not be used to question his credibility.
- Because neither the Fifth and Sixth Amendment claims nor the due process claim succeeded, the Court held the prosecutor's comments were constitutionally permissible.
Doctrinal impact
Cases affected by this decision
Distinguishes Griffin v. California (380 U.S. 609)
The Court said Griffin's bar on commenting on a defendant's silence does not extend to comments on a testifying defendant's opportunity to tailor testimony.
Reaffirms Reagan v. United States (157 U.S. 301)
The Court relied on Reagan to approve generic, unrebuttable comments on a testifying defendant's credibility made after the defense rests.
Distinguishes Doyle v. Ohio (426 U.S. 610)
The Court said Doyle's implied promise of no penalty for post-arrest silence does not apply to a law requiring presence at trial.