Cite as: 529 U. S. 61 (2000)
Ginsburg, J., dissenting
requests, is instructed not to draw it. Carter v. Kentucky, 450 U. S. 288, 301-303 (1981) (An uninstructed jury is likely to draw adverse inferences from a defendant's failure to testify, so defendants are entitled to have trial courts instruct juries that no such inference may be drawn.).
The inference involved in Griffin is at least as "natural" or "irresistible" as the inference the prosecutor in Agard's case invited the jury to draw. There are, to be sure, reasons why an innocent defendant might not want to testify. Perhaps he fears that his convictions for prior crimes will generate prejudice against him if placed before the jury; perhaps he has an unappealing countenance that could produce the same effect; perhaps he worries that cross-examination will drag into public view prior conduct that, though not unlawful, is deeply embarrassing. For similar reasons, an innocent person might choose to remain silent after arrest. But in either the Griffin scenario of silence at trial or the Doyle scenario of silence after arrest, something beyond the simple innocence of the defendant must be hypothesized in order to explain the defendant's behavior.
Not so in the present case. If a defendant appears at trial and gives testimony that fits the rest of the evidence, sheer innocence could explain his behavior completely. The inference from silence to guilt in Griffin or from silence to un-trustworthiness in Doyle is thus more direct than the inference from presence to tailoring.6 Unless one has prejudged
6 The Court describes the inference now at issue as one not from presence to tailoring but merely from presence to opportunity to tailor. Ante, at 71, n. 2. The proposition that Agard simply had the opportunity to tailor, we note, is not what the prosecutor urged upon the jury. She encouraged the jury to draw, from the fact of Agard's opportunity, the inference that he had actually tailored his testimony. See App. 49 (Defendant was able "to sit here and listen to the testimony of all the other witnesses before he testifie[d]. . . . [He got] to sit here and think what am I going to say and how am I going to say it? How am I going to fit it into the evidence? . . . He's a smart man. . . . He used everything to his advantage.")
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