84
Ginsburg, J., dissenting
I do not comprehend why the Court finds in this account any demonstration that the prosecutorial comment at issue here has a long history of unchallenged use. If prosecutors in times past had no need to make generic tailoring arguments, it is likely such arguments simply were not made. Notably, the Court calls up no instance of an 18th- or 19th-century prosecutor's urging that a defendant's presence at trial facilitated tailored testimony. And if prosecutors did not make such arguments, courts had no occasion to rule them out of order. The absence of old cases prohibiting the comment that the Court now confronts thus scarcely indicates that generic accusations of tailoring have long been considered constitutional.
The Court's discussion of Griffin is equally unconvincing. The Court posits that a ban on inviting juries to draw adverse inferences from a defendant's silence differs materially from a ban on inviting juries to draw adverse inferences from a defendant's presence, because the inference from silence "is not . . . 'natural or irresistible.' " See ante, at 67 (quoting Griffin, 380 U. S., at 615) (emphasis added by majority). This is a startling statement. It fails to convey what the Court actually said in Griffin, which was that the inference from silence to guilt is "not always so natural or irresistible." See ibid. (emphasis added). The statement that an inference is not always natural or irresistible implies that the inference is indeed natural or irresistible in many, perhaps most, cases. And so it is. See Mitchell v. United States, 526 U. S. 314, 332 (1999) (Scalia, J., dissenting) (The Griffin rule "runs exactly counter to normal evidentiary inferences: If I ask my son whether he saw a movie I had forbidden him to watch, and he remains silent, the import of his silence is clear."); Lakeside v. Oregon, 435 U. S. 333, 340 (1978) (It is "very doubtful" that jurors, left to their own devices, would not draw adverse inferences from a defendant's failure to testify.). It is precisely because the inference is often natural (but nonetheless prohibited) that the jury, if a defendant so
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