Cite as: 529 U. S. 61 (2000)
Ginsburg, J., dissenting
tion. See id., at 304 (defendant was qualified to testify under oath pursuant to an 1878 Act of Congress, ch. 37, 20 Stat. 30, which removed the common-law disability that had previously prevented defendants from giving sworn testimony). No one in that 19th-century case suggested that the trial court's comment exacted a penalty for the exercise of any constitutional right.2 It is thus inaccurate for the Court to portray Reagan as precedent for the proposition that the difference between summation and cross-examination "is not a constitutionally significant distinction." Ante, at 72. Reagan made no determination of constitutional significance or insignificance, for it addressed no constitutional question.
The Court endeavors to bring Reagan within constitutional territory by yoking it to Griffin. The Court asserts that Griffin relied on the very statute that defined the rights of the defendant in Reagan and that Griffin's holding makes sense only if the statute in Reagan carries constitutional implications. Ante, at 72, n. 3. This argument is flawed in its premise, because Griffin rested solidly on the Fifth Amendment. The Court in Griffin did refer to the 1878 statute at issue in Reagan, but it did so only in connection with its discussion of Wilson v. United States, 149 U. S. 60 (1893), a decision construing a different provision of that statute to prohibit federal prosecutors from commenting to juries on defendants' failure to testify. See Griffin, 380 U. S., at 612- 613. The statute at issue in Reagan and Wilson, now codified at 18 U. S. C. § 3481, provides that defendants in criminal trials have both the right to testify and the right not
2 The offense charged in Reagan was, moreover, a misdemeanor rather than a felony. See 157 U. S., at 304. Even today, our cases recognize a distinction between serious and petty crimes, and we have held that some provisions of the Sixth Amendment do not apply in petty prosecutions. See, e. g., Lewis v. United States, 518 U. S. 322 (1996) (right to jury trial does not attach in trials for petty offenses). The Reagan Court classified the case before it as belonging to the less serious category of offenses and explicitly denied the defendant the heightened procedural protections that attached in trials for more serious crimes. See 157 U. S., at 302-304.
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