Cite as: 529 U. S. 61 (2000)
Opinion of the Court
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 result 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 instruction 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, demonstrate 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 prosecutor 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 prosecutor 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.
71
Page: Index Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 NextLast modified: October 4, 2007