Cite as: 529 U. S. 61 (2000)
Ginsburg, J., dissenting
Second, it contends that respondent Agard's case is readily distinguishable from Griffin. The Court's historical excursus does not even begin to prove that comments like those in this case have ever been accepted as constitutional, and the attempt to distinguish Griffin relies on implausible premises that this Court has previously rejected.
The Court's historical narrative proceeds as follows: In the early days of the Republic, prosecutors had no "need" to suggest that defendants might use their presence at trial to tailor their testimony, because defendants' (unsworn) statements at trial could be compared with pretrial statements that defendants gave as a matter of course. Later, some States instituted rules requiring defendants to testify before the other witnesses did,4 thus obviating once again any need to make arguments about tailoring. There is no evidence, the Court says, that any State ever prohibited the kind of generic argument now at issue until recent times.5 So it must be the case that generic tailoring arguments have traditionally been thought unproblematic. Ante, at 65-66.
4 In Brooks v. Tennessee, 406 U. S. 605 (1972), we held this practice unconstitutional under the Fifth and Fourteenth Amendments.
5 In recent years, several state courts have found it improper for prosecutors to make accusations of tailoring based on the defendant's constant attendance at trial. See, e. g., State v. Cassidy, 236 Conn. 112, 672 A. 2d 899 (1996); State v. Jones, 580 A. 2d 161, 163 (Me. 1990); Hart v. United States, 538 A. 2d 1146, 1149 (D. C. 1988); State v. Hemingway, 148 Vt. 90, 91-92, 528 A. 2d 746, 747-748 (1987); Commonwealth v. Person, 400 Mass. 136, 138-142, 508 N. E. 2d 88, 90-92 (1987); State v. Johnson, 80 Wash. App. 337, 908 P. 2d 900 (1996). In Commonwealth v. Elberry, 38 Mass. App. 912, 645 N. E. 2d 41 (1995), the trial judge sustained defense counsel's objection to a prosecutor's tailoring argument that burdened the defend-ant's right to be present at trial and issued the following curative instruction: "Of course, the defendant, who was a witness in this case, was here during the testimony of other witnesses, but he's got every right to be here, too. . . . [Y]ou should take everything into consideration in determining credibility, but there is nothing untoward about the defendant being present when other witnesses are testifying." Id., at 913, 645 N. E. 2d, at 43.
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