72
Opinion of the Court
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 comments did here.3
Our trial structure, which requires the defense to close before the prosecution, regularly forces the defense to predict what the prosecution will say. Indeed, defense counsel in this case explained to the jury that it was his job in "closing 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 considered 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 almost 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 Mitchell 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 interpretation of the statute in Reagan is in fact a much more plausible indication of constitutional understanding than the application of the statute in Griffin: 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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