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Portuondo v. Agard

    Brief Fact Summary.

    Defendant was convicted of multiple criminal charges. The court of appeals reversed. The prosecution appealed.

    Synopsis of Rule of Law.

    A criminal defendant’s constitutional rights are not violated by a prosecutorial comment to the jury indicating that the defendant may have gained an advantage by choosing to testify last during trial.

    Facts.

    Agard (Defendant) was tried in federal court for multiple criminal charges. Defendant was the last witness to testify at trial. During closing arguments, the prosecution remarked to the jury that Defendant had benefited from his choice to testify last. The prosecution suggested to the jury that Defendant had used the testimony of prior witnesses to his advantage. Defendant objected to the prosecutor’s remarks on grounds that it deprived him of the right to be present at trial. The trial court overruled Defendant’s objection and stated that it was fair for the prosecution to comment about the fact that he gained an advantage from testifying last. Defendant was convicted and appealed. The court of appeals concluded that the prosecutor’s comments violated Defendant’s Fifth, Sixth and Fourteenth Amendment rights and reversed his conviction. The prosecution petitioned the United States Supreme Court for review.

    Issue.

    Whether a criminal defendant’s constitutional rights are violated by a prosecutorial comment to the jury indicating that the defendant may have gained an advantage by choosing to testify last during trial.

    Held.

    No. The court of appeals’ ruling is reversed. A criminal defendant’s constitutional rights are not violated by a prosecutorial comment to the jury indicating that the defendant may have gained an advantage by choosing to testify last during trial.

    Dissent.

    (Ginsburg, J.): The Court’s ruling converts a defendant’s Sixth Amendment right to be present at trial into an impairment of his credibility. There is no way for the jury to know whether or not Defendant tailored his testimony based upon prior witnesses. One possible explanation for consistency between the testimony of a defendant and prior witnesses is that the defendant is telling the truth. The prosecution’s generic comment would impeach the credibility of a completely innocent defendant just as much as it would affect a guilty defendant. With no opportunity for defense rebuttal, there is no way for the jury to take account of the defendant’s response to the accusation of tailoring in its assessment of credibility. These summary prosecutorial comments infringed upon the defendant’s Sixth Amendment rights without affording the defendant any compensatory rights. For that reason, the court of appeals issued a narrow holding that a prosecutor may not issue a general accusation of tailoring during closing arguments. Nothing in the court of appeals’ opinion would prevent the prosecution from cross-examining a defendant about the decision to testify last. Cross-examination promotes the truth-finding function of a trial, whereas unchallengeable summary comments diminish the rights of defendants with no benefit to the discovery of truth. The prosecution’s comments did not simply point out to the jury that Defendant had the opportunity to tailor testimony based upon prior witnesses. The prosecutor encouraged the jury to draw an inference of tailoring. There is no precedent indicating that the jury may constitutionally draw such an inference. Even if the Constitution does not prohibit the inference, that does not make it permissible for the prosecution to encourage the jury to draw such an inference. The Court’s ruling infringes upon the constitutional rights of defendants while adding nothing to the truth-finding goal of the trial process. I would affirm the ruling of the court of appeals.

    Discussion.

    In Griffin v. California, 380 U.S. 609 (1965), we reversed a criminal conviction in a case in which the trial court told the jury that it was allowed to regard the defendant’s refusal to testify as evidence of the truth of the charges against him. We held that the court’s comments imposed an unconstitutional penalty against the exercise of the defendant’s privilege against self-incrimination. The point of Griffin was to preserve the defendant’s right to make the prosecution prove its case without the benefit of the defendant’s self-incriminating testimony. To maintain that right, the jury must not be allowed to draw an inference of guilt from the defendant’s silence. By contrast, the fact that a defendant chooses to testify last may be properly considered by the jury in its assessment of the defendant’s credibility. When a defendant takes the stand, his credibility is subject to impeachment. The Constitution does not prohibit the jury from considering the timing of a defendant’s testimony in its assessment of credibility. Defendant also argues that the prosecutor’s comments were impermissible because they were not based on any particular evidence that Defendant had actually tailored his testimony. A comment that calls the jury’s attention to a generalized condition that may bear upon a defendant’s credibility does not violate any of the defendant’s constitutional rights. Defendant asserts that the prosecutor’s comments were impermissible because they were made during closing arguments and the defense had no opportunity for rebuttal. It is a long-standing tradition of our trial procedure to require the defendant to make closing arguments before the prosecution. The defense is expected to anticipate the prosecution’s arguments, and there is no reason to depart from that practice when a defendant testifies on his own behalf. Finally, Defendant argues that because state law required him to be present at trial, the prosecution’s comments about his presence violated his due process rights. Even if Defendant’s mandatory presence at trial affected his credibility, there is no precedent for ascribing a due process violation to any diminishment in credibility.


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