82
Ginsburg, J., dissenting
to testify. Reagan concerned the former right, Wilson the latter right, and Griffin the constitutional analogue to the latter right. If the Court in Griffin had regarded the statute as settling the meaning of the Fifth Amendment—an odd position to imagine the Court taking—then it could have rested on Wilson. It did not. It said that Wilson would govern were the question presented a statutory one, but that the question before it was constitutional: "The question remains whether, statute or not, the comment . . . violates the Fifth Amendment." 380 U. S., at 613 (emphasis added). Thus, the question in Griffin was not controlled by Wilson precisely because the statute construed in Wilson and Reagan was just that—a statute—and not a provision of the Constitution. Accordingly, Griffin provides no support for the Court's unorthodox contention that Reagan's statutory holding was actually of constitutional dimension.3
II
The Court offers two arguments in support of its conclusion that a prosecutor may make the generic tailoring accusations at issue in this case. First, it suggests that such comment has historically not been seen as problematic.
3 I do not question the constitutionality of an instruction in which a trial court generally advises the jury that in evaluating the credibility of witnesses, it may take account of the interest of any witness, including the defendant, in the outcome of a case. The interested-witness instruction given in Agard's case was of this variety. The trial court first told the jury that it should consider the interest that any interested witness might have in the outcome. See Tr. 834 ("If you find that any witness is an interested witness, you should consider such interest in determining the credibility of that person's testimony and the weight to be given to it."). It then went on to note, as the Court reports, ante, at 73, that the defendant is an interested witness. See Tr. 834. Any instruction generally applicable to witnesses will affect defendants who testify, just as the rules governing the admissibility of testimony at trial will restrict defendants' testimony as they do the testimony of other witnesses. It is a far different matter for an instruction or an argument to impose unique burdens on defendants.
Page: Index Previous 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NextLast modified: October 4, 2007