78
Ginsburg, J., dissenting
less than the guilty. Nor can a jury measure a defendant's credibility by evaluating the defendant's response to the accusation, for the broadside is fired after the defense has submitted its case. An irrebuttable observation that can be made about any testifying defendant cannot sort those who tailor their testimony from those who do not, much less the guilty from the innocent.
I
The Court of Appeals took a carefully restrained and moderate position in this case. It held that a prosecutor may not, as part of her summation, use the mere fact of a defend-ant's presence at his trial as the basis for impugning his credibility. A prosecutor who wishes at any stage of a trial to accuse a defendant of tailoring specific elements of his testimony to fit with particular testimony given by other witnesses would, under the decision of the Court of Appeals, have leave to do so. See 159 F. 3d 98, 99 (CA2 1998). Moreover, on cross-examination, a prosecutor would be free to challenge a defendant's overall credibility by pointing out that the defendant had the opportunity to tailor his testimony in general, even if the prosecutor could point to no facts suggesting that the defendant had actually engaged in tailoring. See 117 F. 3d 696, 708, n. 6 (CA2 1997). The Court of Appeals held only that the prosecutor may not launch a general accusation of tailoring on summation. See id., at 709; see also United States v. Chacko, 169 F. 3d 140, 150 (CA2 1999). Thus, the decision below would rein in a prosecutor solely in situations where there is no particular reason to believe that tailoring has occurred and where the defendant has no opportunity to rebut the accusation.
The Court of Appeals' judgment was correct in light of Griffin and Doyle. Those decisions instruct 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. See Doyle, 426 U. S., at
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