PORTUONDO, SUPERINTENDENT, FISHKILL COR- RECTIONAL FACILITY v. AGARD

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PORTUONDO, SUPERINTENDENT, FISHKILL COR-
RECTIONAL 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, call-
ing the jury’s attention to the fact that respondent had the opportunity
to hear all other witnesses testify and to tailor his own testimony ac-
cordingly. 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 com-
ments 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 prohib-
ited 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 de-
fendant 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 defend-
ant’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 de-
fendant takes the stand, his credibility may be assailed like that of any

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62 PORTUONDO v. AGARD
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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 ge-
neric 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 de-
fendant’s deep personal interest in the case when evaluating his credibil-
ity. 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 di-
rectly infringed. Respondent also argues, however, that it was im-
proper to comment on his presence at trial because New York law re-
quires 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 impu-
nity is implicit in a statute requiring a defendant to be present at trial,
and there is no authority whatever for the proposition that the impair-
ment 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

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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 atten-
tion 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 de-
termination. 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. Re-
spondent testified that he and Winder had engaged in con-
sensual vaginal intercourse. He further testified that dur-
ing 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 in-
terest 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.

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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 di-
rect 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-

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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 com-
ments 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 im-
peachment 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 tes-
tify. 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 com-
ment, by “solemniz[ing] the silence of the accused into evi-
dence 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 foun-
dation, neither in 1791, when the Bill of Rights was adopted,
nor in 1868 when, according to our jurisprudence, the Four-
teenth Amendment extended the strictures of the Fifth and
Sixth Amendments to the States. The process by which

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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 de-
tailing 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. Wig-
more, Evidence § 579 (3d ed. 1940).
The pretrial statement did not begin to fall into dis-
use 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 devel-
opments, some States attempted to limit a defendant’s oppor-
tunity to tailor his sworn testimony by requiring him to tes-
tify 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 testi-
mony. The dissent faults us for “call[ing] up no instance of
an 18th- or 19th-century prosecutor’s urging that a defend-
ant’s presence at trial facilitated tailored testimony.” Post,

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at 84 (opinion of Ginsburg, J.). We think the burden is
rather upon respondent and the dissent, who assert the un-
constitutionality 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. Cas-
sidy, 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, 436–
439 (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 comment-
ing 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 opin-
ion 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 in-
struct 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

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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 defend-
ant’s refusal to testify; it is something else (and quite impos-
sible) for the jury to evaluate the credibility of the defend-
ant’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 re-
spects: 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 proposi-
tion 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 ap-
pended) that forbidding invitation of a permissible inference is one of two
alternative respects in which this case is substantially different from re-
spondent’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 opportu-
nity to tailor from presence is inevitable, and prohibiting that inference
(while simultaneously asking the jury to evaluate the veracity of the de-
fendant’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 opportu-
nity to tailor and actually made an accusation of tailoring. It would be
worth inquiring into that subtle distinction if the dissent proposed to per-
mit 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 alterna-
tive described above, the jury must be prohibited from taking into account
the opportunity of tailoring.

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Second, Griffin prohibited comments that suggest a de-
fendant’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 pros-
ecutor from suggesting to the jury that it may treat the
defendant’s silence as substantive evidence of guilt’ ” (quot-
ing 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 de-
fendant] assumes the role of a witness, the rules that gener-
ally apply to other witnesses—rules that serve the truth-
seeking 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 defend-
ant 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, how-
ever, 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 suggest-
ing that he would not have waited two weeks to report the
killing if that was what had occurred. In an argument strik-
ingly similar to the one presented here, the defendant in
Jenkins claimed that commenting on his prearrest silence
violated his Fifth Amendment privilege against self-
incrimination because “a person facing arrest will not remain
silent if his failure to speak later can be used to impeach

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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 prosecu-
tor’s comments were constitutionally permissible. “[T]he
Constitution does not forbid ‘every government-imposed
choice in the criminal process that has the effect of discour-
aging 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 cross-
examination impeaching his credibility just like any other
witness.’ ” Jenkins, supra, at 235–236 (quoting Grunewald
v. United States, 353 U. S. 391, 420 (1957)).
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 pre-
ferred means of counteracting tailoring of the defendant’s
testimony. In that case, the Court found unconstitutional
Tennessee’s attempt to defeat tailoring by requiring defend-
ants 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 inter-
est. Id., at 610. The Court expressed its awareness, how-
ever, 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 requires—
that the prosecutor be allowed to bring to the jury’s atten-
tion the danger that the Court was aware of.
Respondent and the dissent also contend that the prose-
cutor’s comments were impermissible because they were
“generic” rather than based upon any specific indication of
tailoring. Such comment, the dissent claims, is unconstitu-
tional because it “does not serve to distinguish guilty defend-
ants from innocent ones.” Post, at 77. But this Court has

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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 re-
sult 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 instruc-
tion 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, demon-
strate 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 “in-
capacity 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 prose-
cutor 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 prose-
cutor 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.

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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 com-
ments did here.3
Our trial structure, which requires the defense to close
before the prosecution, regularly forces the defense to pre-
dict what the prosecution will say. Indeed, defense counsel
in this case explained to the jury that it was his job in “clos-
ing 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 con-
sidered 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 al-
most 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 Mitch-
ell 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 interpreta-
tion of the statute in Reagan is in fact a much more plausible indication
of constitutional understanding than the application of the statute in Grif-
fin: 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.

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interested-witness instruction, after the defense has closed—
is in a long tradition that continues to the present day. See,
e. g., United States v. Jones, 587 F. 2d 802 (CA5 1979); United
States v. Hill, 470 F. 2d 361 (CADC 1972); 2 C. Wright, Fed-
eral 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 inter-
ested 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 conten-
tion that for purposes of determining the validity of generic
attacks upon credibility “the distinction between cross-
examination 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 de-
fendant 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 appro-
priate—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 unques-
tionable propriety of the standard interested-witness instruction with his
conclusion that comment upon the opportunity to tailor, although it is con-
stitutional, “demean[s] [the adversary] process” and “should be discour-
aged.” Post, at 76 (opinion concurring in judgment). Our decision, in
any event, is addressed to whether the comment is permissible as a con-
stitutional 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 in-
struction, are best left to trial courts, and to the appellate courts which
routinely review their work.

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74 PORTUONDO v. AGARD
Opinion of the Court
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 constitu-
tional protection . . . that Amendment, not the more general-
ized 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), re-
quires such a holding. In Doyle, the defendants, after being
arrested for selling marijuana, received their Miranda warn-
ings 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 de-
fendants, 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 be-
cause the Miranda warnings contained an implicit “assur-
ance 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. “[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, 455 U. S. 603,
606 (1982) (per curiam). The Miranda warnings had, after
all, specifically given the defendant both the option of speak-
ing and the option of remaining silent—and had then gone

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75 Cite as: 529 U. S. 61 (2000)
Opinion of the Court
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 impair-
ment 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 punish-
able 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 crim-
inal 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 pres-
ent 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

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76 PORTUONDO v. AGARD
Ginsburg, J., dissenting
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 con-
viction 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 ver-
dict is returned. The prosecutor’s argument in this case de-
meaned 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 argu-
ment survives constitutional scrutiny does not, of course, de-
prive 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 de-
fendant’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

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Ginsburg, J., dissenting
Griffin v. California, 380 U. S. 609 (1965), we held that a
defendant’s refusal to testify at trial may not be used as evi-
dence 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 credi-
bility. 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 ad-
vances that search. The generic accusation that today’s de-
cision 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 at-
tend his trial. U. S. Const., Amdt. 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

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78 PORTUONDO v. AGARD
Ginsburg, J., dissenting
less than the guilty. Nor can a jury measure a defendant’s
credibility by evaluating the defendant’s response to the ac-
cusation, for the broadside is fired after the defense has sub-
mitted 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 mod-
erate position in this case. It held that a prosecutor may
not, as part of her summation, use the mere fact of a defend-
ant’s presence at his trial as the basis for impugning his cred-
ibility. A prosecutor who wishes at any stage of a trial to
accuse a defendant of tailoring specific elements of his testi-
mony to fit with particular testimony given by other wit-
nesses would, under the decision of the Court of Appeals,
have leave to do so. See 159 F. 3d 98, 99 (CA2 1998). More-
over, 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 testi-
mony 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 de-
fendant’s exercise of a constitutional fair trial right is “insol-
ubly ambiguous” as between innocence and guilt, the prose-
cutor may not urge the jury to construe the bare invocation
of the right against the defendant. See Doyle, 426 U. S., at

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617. To be sure, defendants are not categorically exempt
from some costs associated with the assertion of their consti-
tutional prerogatives. The Court is correct to say that the
truth-seeking function of trials places demands on defend-
ants. 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 can-
not respond, to invite the jury to convict on the basis of con-
duct as consistent with innocence as with guilt. Where bur-
dening 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 per-
mitting prosecutors to make accusations of tailoring—even
wholly generic accusations of tailoring—as part of cross-
examination. Some defendants no doubt do give false testi-
mony 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 sig-
nals 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 dis-
tinguish the guilty from the innocent. It undermines all de-
fendants 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 wit-
nesses 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.

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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 pre-
venting a defendant from answering the charge. This prob-
lem was especially pronounced in the instant case. Under
New York law, defendants generally may not bolster their
own credibility by introducing their prior consistent state-
ments 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 constitu-
tional 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 bur-
dened 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-

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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 testi-
mony). 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 constitu-
tional 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 im-
plications. Ante, at 72, n. 3. This argument is flawed in its
premise, because Griffin rested solidly on the Fifth Amend-
ment. 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 612–
613. The statute at issue in Reagan and Wilson, now codi-
fied at 18 U. S. C. § 3481, provides that defendants in crimi-
nal 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.

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82 PORTUONDO v. AGARD
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to testify. Reagan concerned the former right, Wilson the
latter right, and Griffin the constitutional analogue to the lat-
ter right. If the Court in Griffin had regarded the statute as
settling the meaning of the Fifth Amendment—an odd posi-
tion 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 conclu-
sion that a prosecutor may make the generic tailoring accu-
sations 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 instruc-
tion 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 determin-
ing 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.

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Second, it contends that respondent Agard’s case is readily
distinguishable from Griffin. The Court’s historical excur-
sus 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 prem-
ises 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) state-
ments 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 tra-
ditionally been thought unproblematic. Ante, at 65–66.
4 In Brooks v. Tennessee, 406 U. S. 605 (1972), we held this practice un-
constitutional under the Fifth and Fourteenth Amendments.
5 In recent years, several state courts have found it improper for prose-
cutors 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 defend-
ant’s right to be present at trial and issued the following curative instruc-
tion: “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 determin-
ing 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.

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84 PORTUONDO v. AGARD
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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 argu-
ments, it is likely such arguments simply were not made.
Notably, the Court calls up no instance of an 18th- or 19th-
century 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 indi-
cates 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 ad-
verse 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 infer-
ence 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 tes-
tify.). It is precisely because the inference is often natural
(but nonetheless prohibited) that the jury, if a defendant so

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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 tes-
tify, 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. Per-
haps he fears that his convictions for prior crimes will gener-
ate 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 unlaw-
ful, is deeply embarrassing. For similar reasons, an inno-
cent 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 infer-
ence from silence to guilt in Griffin or from silence to un-
trustworthiness in Doyle is thus more direct than the infer-
ence from presence to tailoring.6 Unless one has prejudged
6 The Court describes the inference now at issue as one not from pres-
ence 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 (De-
fendant 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.”)

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86 PORTUONDO v. AGARD
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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 there-
fore 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 main-
tain 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 ge-
neric 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 enti-
tled to do.” Ante, at 68. The Court offers no prior au-
thority, however, for the proposition that a jury may con-
stitutionally 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 per-
mitted to draw the inference in question, it would not follow
that prosecutors could urge juries to draw it. Doyle pro-
hibits prosecutors from urging juries to draw adverse in-
ferences 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 some-
thing 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 com-
ment 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.

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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 un-
problematic 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 domi-
nantly 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 crimi-
nal 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 de-
fendants even about matters that may touch on their consti-
tutional rights, and Brooks suggests that cross-examination
can expose a defendant who tailors his testimony. See Jen-
kins, 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 restric-
tion on prosecutorial license that the Court today rejects.

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88 PORTUONDO v. AGARD
Ginsburg, J., dissenting
* * *
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 de-
fendant’s exercise of a constitutional right to be present dur-
ing the trial.” Ibid. I would affirm that sound judgment
and therefore dissent from the Court’s disposition.