86
Ginsburg, J., dissenting
the defendant as guilty, or unless there are specific reasons to believe that particular testimony has been altered, the possibility that the defendant is telling the truth is surely as good an explanation for the coherence of the defendant's testimony as any that involves wrongful tailoring. I therefore disagree with the Court's assertion, ante, at 68, that the Court of Appeals' decision in Agard's case differs from our decision in Griffin by "requir[ing] the jury to do what is practically impossible." 7 It makes little sense to maintain that juries able to avoid drawing adverse inferences from a defendant's silence would be unable to avoid thinking that only a defendant's opportunity to spin a web of lies could explain the seamlessness of his testimony.
The Court states in the alternative that if proscribing generic accusations of tailoring at summation does not require the jury to do the impossible, then it prohibits prosecutors from "inviting the jury to do what the jury is perfectly entitled to do." Ante, at 68. The Court offers no prior authority, however, for the proposition that a jury may constitutionally draw the inference now at issue. The Second Circuit thought the matter open, and understandably so in light of Griffin and Carter. But even if juries were permitted to draw the inference in question, it would not follow that prosecutors could urge juries to draw it. Doyle prohibits prosecutors from urging juries to draw adverse inferences from a defendant's choice to remain silent after re-7 In fact, the Court of Appeals' decision in Agard's case does not tell juries to do anything; it merely prevents prosecutors from inviting them to do something. I presume that the Court means to say that the Court of Appeals' decision prohibits prosecutors from inviting juries to do something jurors will inevitably do even without invitation. In either case, however, the Court's confidence that all juries will naturally regard the defendant's presence at trial as a reason to be suspicious of his testimony is perplexing in light of the Court's equal confidence that allowing comment on the same subject is "essential" to the truth-finding function of the trial. See ante, at 73. If all juries think this anyway, the pursuit of truth will not suffer if they are not told to think it.
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