Cite as: 529 U. S. 61 (2000)
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 evidence 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 credibility. 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 advances that search. The generic accusation that today's decision 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 attend 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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