DEFENDANT’S PRESENCE AT TRIAL — COMMENTING ON DEFENDANT’S ABILITY TO SHAPE TESTIMONY
Case: Portuondo v. Agard
Issue: Do a prosecutor’s comments, during summation, on the defendant’s ability: to be present during trial; hear all the witnesses against him; and tailor his story before testifying, burden the defendant’s right to be present at his own trial?
Facts: Agard was tried on 19 sodomy and assault counts and 3 weapons counts. Lacking strong physical evidence, the prosecution relied upon the testimony of the alleged victim and her friend. To refute this, Agard himself testified and denied all charges. During closing summation, the prosecutor remarked:
[T]he defendant has a benefit…unlike all the other witnesses…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 sit here and think what I am going to say and how am I going to say it? How am I going to fit it into the evidence?
The trial court rejected the argument that these comments violated the defendant’s right to be present at trial. The defendant was then convicted of one count of sodomy and two counts of illegal weapon possession. On appeal, the New York Supreme Court reversed one count of weapon possession but affirmed the other convictions. After being denied federal habeas relief in district court, the United States Court of Appeals for the Second Circuit granted relief, holding that the prosecutor’s comments violated the Fifth, Sixth and Fourteenth Amendments.
Holding: The Court declined to extend Griffin v. California, 380 U.S. 609 (1965), which prohibited comments upon an accused’s failure to testify, to situations involving comments upon the defendant’s presence in the courtroom and the opportunity it provides him to tailor his testimony.
Reasoning: The Court began by noting that there was no historical foundation for arguing that a prosecutor may not comment on the defendant’s presence at trial in the closing argument. Historically, all defendants made a pretrial statement regarding their version of the facts. If their story at trial differed from this statement, the contradiction was noted. As use of the pretrial statement fell into disuse, some states required defendants to testify before other witnesses in order to prevent the tailoring of testimony to the evidence of the case. These practices were never questioned by the courts until later decisions limited judges’ ability to comment on the silence of a defendant. Thus, the Court held, prosecutors have traditionally curtailed a defendant’s ability to tailor his testimony to that of other witnesses. Suggesting the possibility of such tailoring in a closing statement, as the prosecutor did in Agard’s case, is no different.
The Court next distinguished Agard’s case from Griffin v. California, 380 U.S. 609 (1965), where the Court held that comments by the prosecutor on an accused’s silence (or instructions from the trial court that a jury can consider such silence as evidence of guilt) impermissibly burden the Fifth Amendment privilege against self-incrimination (applied to the states through the Fourteenth Amendment) by "making its assertion costly." Agard argued that the prosecutor’s comments regarding his presence at trial burdened his right to be present at his trial in the same manner; by questioning his credibility simply because he was present at trial, the prosecutor’s closing statement made the assertion of this right costly.
The Court, however, found Agard’s case distinguishable from Griffin in two ways. First, Griffin prohibited the prosecution from urging the jury to do something which "the jury is not permitted to do." The jury cannot hold the defendant’s silence against him, because "the inference of guilt from silence is not always ‘natural or irresistible.’" In Agard’s case, however, the Court held that it was 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." It is one thing, as Griffin requires, for a jury to evaluate all the other evidence against a defendant and not consider his failure to testify. It is "something else (and quite impossible)" for the jury, in evaluating the defendant’s credibility as a witness, to "[blot] out from its mind the fact that before giving the testimony the defendant had been sitting there while listening to the other witnesses." Thus, Agard was requesting the Court either to prohibit prosecutors from "inviting the jury to do what the jury is entitled to do" or to "require the jury to do what is practically impossible" by not making an inference regarding the defendant’s credibility.
Second, Griffin prohibits comments that suggest a defendant’s silence is evidence of guilt. The comments in this case, however, only attempted to impeach the defendant’s credibility as a witness, just as any other witness’ credibility can be impeached. No special treatment is accorded defendants with respect to issues of credibility.
Next, the Court rejected the defense’s argument that the prosecutor’s remarks generically referred to his presence at trial and did not seek to impeach any specific testimony. Because the challenged comments could be applied to any defendant who attends his own trial, Agard argued that they did not "serve to distinguish guilty defendants from innocent ones." Relying on Reagan v. United States, 157 U.S. 301 (1895), which upheld instructions that the jury could consider a defendant’s personal interest in the outcome of the trial when evaluating his credibility, the Court held that generic statements which do not demonstrate the defendant’s guilt were permissible.
Along the same reasoning, the Court also rejected the argument that the prosecutor’s comments should not be allowed because they came during the summation and not during cross examination, thereby denying defense a chance to respond. The Court held that the same is true for jury instructions; the defense has already rested its case when prosecution makes its closing statements and when jury instructions are given. The fact that Agard did not have a chance to respond to this attack on his credibility, therefore, does not render it unconstitutional.
Finally, the Court held that the comments did not violate the Fourteenth Amendment right to due process. New York law required Agard to be present at his trial. He therefore argued that the prosecutor’s comments punished him for fulfilling this statutory duty and violated substantive due process. In rejecting this argument, the Court reiterated the fact that the prosecutor’s comments were only an impairment to credibility, and as such, there is no authority for claiming that such impairment "when caused by mandatory presence at trial violated due process." If it were otherwise, the Court reasoned, we would expect to see defendants absent from trials in which they testify in other jurisdictions which do not require the defendant’s presence. As this is not the case, there can be nothing fundamentally unfair in allowing a prosecutor to impeach a defendant based on his ability to hear testimony before taking the stand himself.
Other Opinions: Justices Stevens and Breyer concurred in the judgment, finding that the prosecutor’s summation did not constitute serious trial error. They noted, however, that the summation violated the respect accorded a defendant to be present at his trial and ignored the presumption of innocence.
Justices Ginsburg and Souter dissented. They criticized the Court’s historical argument, noting that the opinion cited no cases of prosecutors commenting on the tailoring of a defendant’s testimony based on his presence at trial. If prosecutors did not make such comments, the courts would not have had occasion to rule on their constitutionality. The Court is therefore wrong to take silence on this issue as evidence that such comments have long been considered constitutional.
The dissent also distinguished this case from Reagan, noting that Reagan did not involve the burdening of a constitutional right, such as the right to be present at trial. Thus, the use of generic comments when related to the exercise of such a right should not be permissible.
The dissent also argued that this case is analogous to Griffin, arguing that it is neither natural nor irresistible to infer that a defendant tailored his testimony because he was present at trial. Rather, it may be that this defendant was simply telling the truth. Thus, sheer innocence alone could explain his testimony, and it is unfair to allow the prosecutor to urge juries to make another inference regarding his presence at trial during the closing summation when defense cannot respond.
Comments: Prosecutors routinely comment on a testifying defendant’s ability to tailor his testimony. Had the dissenters prevailed, this case would have had a major impact on state and federal criminal trial practice.