Cite as: 529 U. S. 61 (2000)
Ginsburg, J., dissenting
617. To be sure, defendants are not categorically exempt from some costs associated with the assertion of their constitutional prerogatives. The Court is correct to say that the truth-seeking function of trials places demands on defendants. In a proper case, that central function could justify a particular burden on the exercise of Sixth Amendment rights. But the interests of truth are not advanced by allowing a prosecutor, at a time when the defendant cannot respond, to invite the jury to convict on the basis of conduct as consistent with innocence as with guilt. Where burdening a constitutional right will not yield a compensating benefit, as in the present case, there is no justification for imposing the burden.
The truth-seeking function of trials may be served by permitting prosecutors to make accusations of tailoring—even wholly generic accusations of tailoring—as part of cross-examination. Some defendants no doubt do give false testimony calculated to fit with the testimony they hear from other witnesses. If accused on cross-examination of having tailored their testimony, those defendants might display signals of untrustworthiness that it is the province of the jury to detect and interpret. But when a generic argument is offered on summation, it cannot in the slightest degree distinguish the guilty from the innocent. It undermines all defendants equally and therefore does not help answer the question that is the essence of a trial's search for truth: Is this particular defendant lying to cover his guilt or truthfully narrating his innocence? 1
1 The prosecutor made the following comment on summation: "A lot of what [the defendant] told you corroborates what the complaining witnesses told you. The only thin[g] that doesn't is the denials of the crimes. Everything else fits perfectly." App. 46-47. That, according to the prosecution, is reason for the jury to be suspicious that the defendant falsely tailored his testimony. The implication of this argument seems to be that the more a defendant's story hangs together, the more likely it is that he is lying. To claim that such an argument helps find truth at trial is to step completely through the looking glass.
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