Whether it violates the Constitution for the prosecution to comment duringclosing argument that the defendant's opportunity to hear the testimonyof all other witnesses before taking the stand enhanced his ability to fabricatetestimony.




In the Supreme Court of the United States

No. 98-1170
LEONARD PORTUONDO, SUPERINTENDENT, FISHKILL
CORRECTIONAL FACILITY, PETITIONER

v.

RAY AGARD

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONER

The question presented is whether it is unconstitutional for the prosecutionto observe, during closing argument, that the defendant's opportunity tohear the testimony of all other witnesses before testifying enhanced hisability to fabricate his own testimony. This Court's resolution of thatquestion, and its treatment of the "penalty" analysis on whichthe court of appeals relied, see Griffin v. California, 380 U.S. 609 (1965),will affect federal as well as state prosecutions. The United States accordinglyhas an interest in the proper resolution of the question presented.

1. On Friday, April 27, 1990, respondent met Nessa Winder and Breda Keeganat a Manhattan bar and nightclub. At respondent's invitation, Winder accompaniedhim to his apartment, where she spent the night and had sex with him. Thenext week, on May 6, Winder and Keegan met respondent at the same nightclub.Both ultimately returned with him and two of his friends to his apartment.The State presented evidence that respondent committed an assault on Keeganand, after Keegan had left, threatened Winder's life with a handgun, rapedher, and subjected her to repeated acts of forcible anal and oral sodomy.He also struck her so badly in the eye that it began to seal shut. Pet.App. 15a-22a; Tr. 88.1
The next day, May 7, 1990, Winder found a message from respondent on heranswering machine. In that message, respondent remarked that "thisentire situation" was his "fault" and that he would "neverbother you again." Pet. App. 21a. On May 8, 1990, the police executeda search warrant at respondent's apartment and seized a .45 caliber automatichandgun and two magazines containing shells. Following his arrest, respondentfirst denied that he had a gun, then admitted having it but claimed thatit was not real, did not work, or belonged to a friend. Id. at 21a-22a.

2. Respondent's defense at trial was that Winder and Keegan had falselyaccused him, that he and Winder had engaged only in consensual sex, andthat he had struck Winder only as a reflex after she slapped and scratchedhim. Pet. App. 22a-24a. In its opening argument, the defense urged the juryto find that Winder had cleverly fabricated her story by "mix[ing]in as much truth as possible" among her "lies" to "makethe lies more effective." Tr. 29, 31.
After the close of the State's evidence, respondent took the stand in hisdefense. His testimony largely squared with that of Winder and Keegan concerningthe events of the first weekend, although their stories diverged somewhaton the nature of their sexual relationship. See Pet. App. 15a. Respondent'sversion of the events of May 6, 1990, however, contrasted sharply with thatof the State's witnesses. Respondent testified that he and Winder woke upin his apartment after a night on the town, engaged in consensual vaginalintercourse, and fell back asleep. Upon reawakening, he said, they quarreledover the lateness of the hour, Winder slapped him and scratched his lip,and he struck her reflexively. Id. at 22a-24a; Tr. 670-672, 722. Then, heclaimed, he let Winder leave the apartment. Pet. App. 23a.
During summation, the defense repeatedly charged that the prosecution witnesseswere lying and added: "[A] good or an effective lie often mixes inelements of truth, and Miss Winder's script was effective." J.A. 17.The prosecutor then presented the State's final argument. She began by notingthat respondent's essential defense was that Winder and Keegan "werelying" and that respondent himself was "[t]he victim of all thelies." J.A. 30. The prosecutor then exhaustively summarized the factsof the case and identified a variety of respects in which the testimonyof the complaining witnesses, and in particular Winder's testimony, wasmore believable than respondent's testimony. J.A. 30-49.2 Toward the endof her closing argument, the prosecutor observed that "[a] lot of what[respondent] told you corroborates what the complaining witnesses told you.The only thing that doesn't is the denials of the crimes. Everything elsefits perfectly." J.A. 46-47. She added, over defense objection:
You know, ladies and gentlemen, unlike all the other witnesses * * * thedefendant has a benefit and the benefit that he has, unlike all the otherwitnesses, is he gets to sit here and listen to the testimony of all theother witnesses before he testifies.
That gives you a big advantage, doesn't it. You get to sit here and thinkwhat am I going to say and how am I going to say it? How am I going to fitit into the evidence?
He's a smart man. I never said he was stupid. * * * He used everything tohis advantage.
J.A. 49 (objections omitted). The prosecutor then continued to review thefactors that lent credibility to Winder's testimony and reminded the juryof its obligation to decide the case on the evidence. J.A. 49-52. Afterthe closing, respondent moved for a mistrial on numerous grounds. One ofthose grounds was the claim that "[i]t is improper to make commentsto the jury that they should not believe [respondent] due to his exerciseof his constitutional rights to be present at his trial." J.A. 54.The court denied the motion. J.A. 54-56.
Nineteen sodomy and assault counts against respondent were submitted tothe jury; 14 of the counts concerned Winder, and two concerned Keegan. Theremaining three counts were weapons charges. The jury convicted respondenton one count of sodomy, on one count of felony assault in which rape wasthe underlying felony, and on two counts of third-degree weapons possession;he was acquitted on the remaining charges. The trial court dismissed theassault conviction as repugnant to respondent's rape acquittal. Pet. App.23a-24a. The New York Supreme Court affirmed respondent's sodomy conviction,but reversed one of the three weapons possession convictions. Id. at 14a,24a. The New York Court of Appeals denied leave for further appeal. Id.at 14a.

3. Respondent filed a habeas corpus petition in federal district court,claiming that the prosecutor's comments had violated his Sixth and FourteenthAmendment rights. The district court denied the petition but granted a certificateof probable cause allowing respondent to appeal. Pet. App. 1a-11a.
a. In its initial decision, a split panel of the Second Circuit found thatrespondent's sodomy conviction was invalid and ordered that he be "release[d]after he has served his sentence on the weapons possession conviction, unlessthe state affords him a new trial within sixty days from the issuance ofour mandate." Pet. App. 54a. Judge Oakes, writing only for himself(id. at 13a-54a; compare id. at 67a-69a), analogized the case to Griffinv. California, 380 U.S. 609 (1965), in which this Court held it unconstitutionalfor a trial court or the prosecution to invite the jury to infer the truthof the prosecution's evidence from a defendant's failure to testify. Here,Judge Oakes found, the prosecutor's remarks imposed an unconstitutional"penalty" on respondent's exercise of several different constitutionalrights: due process, the right to testify on one's own behalf, and, mostimportant, the right of a criminal defendant to be present at trial, whichis ultimately derived from the Confrontation Clause of the Sixth Amendment.See generally Illinois v. Allen, 397 U.S. 337, 338 (1970). In his view,such comments "force defendants either to forgo the right to be presentat trial, forgo their Fifth Amendment right to testify on their own behalf,or risk the jury's suspicion," in violation of the Sixth Amendment.Pet. App. 41a.
Judge Oakes rejected the State's argument that the prosecutor's need toattack a testifying defendant's credibility justified the remarks in question.Pet. App. 44a. He found that while it is proper for a prosecutor to cross-examinea witness about parts of his testimony that "have indicia of fabrication,"it is improper for a prosecutor to "raise[] the specter of fabrication1) for the first time on summation; 2) without facts in evidence to supportthe inference; or 3) in a manner which directly attacks the defendant'sright to be present during his entire trial." Id. at 46a; id. at 44an.11 (Griffin "maintains the opportunity of a defendant to fabricateor conform testimony without comment"). Finally, applying the harmless-errorstandard of Brecht v. Abrahamson, 507 U.S. 619, 637-638 (1993), Judge Oakesheld that the prosecutor's comments warranted habeas relief on the groundthat they directly impaired respondent's credibility, which was the primaryissue at trial, and could have been the sole reason that the jury creditedthe victim's version of events. Pet. App. 53a-54a.
Judge Winter concurred in the result on narrower grounds. Pet. App. 67a-69a.He relied on the following factors: that "the only evidence supportingthe inference that [respondent] tailored his testimony to the prosecution'scase was his presence in the courtroom and that testimony itself";that "New York prohibits criminal defendants from introducing priorconsistent statements to demonstrate that their version of evidence wasnot fabricated after learning of the prosecution's evidence"; and that"the prosecutor's argument was not harmless." Id. at 68a-69a.
Judge Van Graafeiland dissented. Pet. App. 54a-67a. He first observed that,as the jury must have known, respondent was in the courtroom the whole timebecause defendants are required to attend their trials. Thus, he explained,the prosecutor's remarks could not have "penalized" respondent'sexercise of his right to attend trial; no juror would "ris[e] to hisfeet in the jury room and say[], 'If [respondent] is innocent, he wouldnot have sat in the courtroom during the entire trial.'" Id. at 61a.Further, in Judge Van Graafeiland's view, the issue of fabrication was notraised for the first time in summation; rather, the specter of fabricationhad permeated the entire trial. Thus, the majority was wrong in concludingthat there were no facts in evidence to support the inference of fabrication.Moreover, Judge Van Graafeiland concluded, if the prosecutor's commentswere as improper and harmful as Judge Oakes found, defense counsel couldhave requested permission to put respondent back on the witness stand. Id.at 65a.
b. On rehearing, the panel stood by its original result but, in an opinionby Judge Winter, "retreat[ed] from any language in our prior opinionssuggesting that it is constitutional error for a prosecutor to make a factualargument that a defendant used his familiarity with the testimony of theprosecution witnesses to tailor his own exculpatory testimony." Pet.App. 72a; see also United States v. Chacko, 169 F.3d 140 (2d Cir. 1999)(adopting narrow view of the court's holding in this case). But, the majorityadded,
[t]he prosecutor in the present case did something quite different, * ** arguing that "unlike all the other witnesses in this case [respondent]has a benefit and the benefit that he has, unlike all the other witnesses,is he gets to sit here and listen to the testimony of all the other witnessesbefore he testifies . . . . That gives you a big advantage, doesn't it."This was not a factual argument based on [respondent's] testimony in thisparticular case but a generic argument that a defendant's credibility isless than that of prosecution witnesses solely because he attended the entiretrial while they were present only during their own testimony. The prosecutor'sargument was not based on the fit between the testimony of [respondent]and other witnesses. Rather, it was an outright bolstering of the prosecutionwitnesses' credibility vis-a-vis [respondent's] based solely on [respondent's]exercise of a constitutional right to be present during trial.
Pet. App. 72a. The majority concluded that "the constitutional issuehere is somewhat similar to that in Griffin." Id. at 73a.3 Judge VanGraafeiland again dissented, on grounds similar to those set forth in hisfirst dissent. Id. at 75a-78a.

Any witness's familiarity with the testimony of other witnesses gives hima natural advantage: it enables him, if he wishes to fabricate a story,to tailor his version of events to avoid unnecessary conflict with the testimonyof those other witnesses. That consideration is relevant to his credibility,and counsel may fairly bring it to the attention of the jury. Respondent'sessential claim here is that the Constitution prohibits such comment whenthe witness in question is a criminal defendant. That position, however,violates the basic principle, established in more than one hundred yearsof this Court's precedent, that a defendant who elects to testify in hisown defense is subject, as a witness, to the same fair comment on his credibilityas any other witness.
In reaching its contrary conclusion, the majority below relied on the "penalty"analysis of Griffin v. California, 380 U.S. 609 (1965). That reliance isunsound. In Griffin, this Court held that, as a corollary to the Fifth Amendmentright against compelled self-incrimination, the prosecution may not commenton the defendant's silence at trial, and the court may not instruct thata defendant's failure to testify is evidence of guilt. The Court reasonedthat such adverse comment would "penalize" a defendant's rightnot to testify by encouraging the jury to believe that the defendant hadexercised the right because he is guilty. No analogous concern arises here,because no juror would find a defendant's presence at trial even remotelysuspicious. The prosecutor's comments in this case invited the jury to considerrespondent's presence at trial not as substantive evidence of his guilt,but as a factor relevant to his credibility as a witness. Griffin's "penalty"analysis has no application in that setting.
In its decision on reconsideration, the majority below limited its Griffinanalysis to cases in which the prosecution makes "not a factual argumentbased on the defendant's testimony in this particular case[,] but a genericargument that a defendant's credibility is less than that of prosecutionwitnesses solely because he attended the entire trial while they were presentonly during their own testimony." Pet. App. 72a. As an initial matter,the proposed distinction between impermissibly "generic" and permissibly"factual" comments is indeterminate and unworkable, as this caseitself illustrates. Moreover, nothing in the Constitution bars the prosecutionfrom making fair generalizations about the credibility of a testifying defendant.Indeed, this Court itself has upheld jury instructions (similar to thosegiven in this case) that identify any criminal defendant as an inherentlyinterested witness whose testimony should be viewed with commensurate skepticism.Such instructions are at least as "generic," and potentially moreinfluential, than the prosecutorial comments at issue here.
More fundamentally, the majority's narrowing of its earlier decision didnothing to resolve the decision's underlying conceptual problem: Griffin's"penalty" analysis is simply inapplicable in this context, nomatter how "generic" the prosecutor's comment may be. There maybe cases, unlike this one, in which official comment on a testifying defendant'spresence at trial is unfair because it is irrelevant to his credibility.Such comment, however, would be subject to challenge on the same basis asany other irrational attack on a testifying defendant; it is not properlysubject to special scrutiny under a "penalty" analysis.

THE PROSECUTOR'S COMMENT ON RESPONDENT'S UNIQUE OPPORTUNITY TO HEAR THETESTIMONY OF OTHER WITNESSES BEFORE TAKING THE STAND WAS NOT UNCONSTITUTIONAL

The trial in this case was a contest between two competing accounts of theunderlying events. From the opening argument, the defense argued that "thecomplaining witnesses"-and particularly Nessa Winder-were "lying."Tr. 29. The defense further insisted that Winder's lies were clever ones:that she had "mixe[d] in as much truth as possible" in her account"to make the lies more effective." Tr. 29, 31; see also J.A. 17.In that respect the defense's argument was analogous to the State's; theprosecutor observed that "[a] lot of what [respondent] told you corroborateswhat the complaining witnesses told you. The only thing that doesn't isthe denials of the crimes. Everything else fits perfectly." J.A. 46-47.The issue in this case is whether respondent's conviction should be vacatedbecause, as part of the same argument, the prosecutor asked the jury toconsider, as one factor in evaluating these mutually contradictory accounts,respondent's opportunity to hear the complete testimony of the State's witnessesbefore offering his own version of events. There are two steps to the inquiry:was that factor relevant to the jury's deliberations; and, if so, does theConstitution nonetheless prohibit the government from encouraging the juryto consider it?

A. The Constitution Does Not Prohibit Official Comment Relevant To A Defendant'sCredibility As A Witness

1. The factor that the prosecutor asked the jury to consider-the advantageto respondent of taking the stand only after the State's witnesses had testified-was plainly relevant to the jury's evaluation of respondent's testimonyand, therefore, to its ultimate determination of his guilt or innocence.It is broadly accepted that witnesses will be more truthful, or at leastless successful in fabricating testimony, if they do not first learn howother witnesses have testified. See Perry v. Leeke, 488 U.S. 272, 281-282(1989). That is why both the federal system and many state courts providefor the sequestration of witnesses at trial, thereby insulating them fromthe testimony of other witnesses. See, e.g., Fed. R. Evid. 615; People v.Medure, 683 N.Y.S.2d 697, 699 (N.Y. Sup. 1998) (under New York law, a "motionfor exclusion of witnesses is addressed to the sound discretion of the court")."The process of sequestration consists merely in preventing one prospectivewitness from being taught by hearing another's testimony. * * * If the hearingof an opposing witness were permitted, the listening witness could thusascertain the precise points of difference between their testimonies, andcould shape his own testimony to better advantage for his cause." 6Wigmore on Evidence § 1838, at 461 (Chadbourn rev. 1976) (emphasisomitted) (quoted in Medure, 683 N.Y.S.2d at 699); accord Perry, 488 U.S.at 281-282.
Respondent could not have been sequestered, because, as a defendant, hehad both the constitutional right and, under New York law, the legal obligationto attend the entirety of his trial. See p. 21, infra. Precisely becausehe was not sequestered, however, he enjoyed the advantage that sequestrationis designed to foreclose: the ability to adjust his testimony to fit, sofar as possible, the facts established in the prosecution's case-in-chief.If he had been kept ignorant of the testimony of the State's witnesses beforehe testified, it would have been more difficult for him to have fabricateda successful but false story: i.e., a story that would both exonerate himfrom wrongdoing and simultaneously avoid inaccurate details that could betraythe story as a whole by unnecessarily conflicting with aspects of the truthfulaccounts offered by other witnesses. That consideration was of course notdispositive to respondent's ultimate credibility as a witness, but it wasat least a relevant factor for the jury to bear in mind.

2. The question presented here is thus whether, despite the relevance ofthis factor to respondent's credibility as a witness, the Sixth Amendmentright of a criminal defendant "to be present in the courtroom at everystage" of trial, Illinois v. Allen, 397 U.S. 337, 338 (1970), barredthe prosecution from inviting the jury to consider that factor. If the subjectof the prosecutor's remark had been any witness other than a criminal defendant,the Constitution plainly would have allowed it. When two witnesses tellmutually contradictory accounts of the same underlying events, and one witnesshas the advantage of listening to the details of the other witness's testimonybefore venturing his own, that advantage is obviously relevant to his credibility,and the jury therefore should be able to consider it.4 Respondent's essentialposition in this case, therefore, is that criminal defendants should betreated differently from other witnesses in this respect and shielded fromrelevant comments concerning their credibility as witnesses.
That position is inconsistent with the settled principle that when a defendant"takes the stand and testifies in his own defense, his credibilitymay be impeached and his testimony assailed like that of any other witness."Brown v. United States, 356 U.S. 148, 154 (1958). This Court has reaffirmedthat principle in a variety of contexts over a span of more than a century.
In Reagan v. United States, 157 U.S. 301 (1895), the trial court had instructedthe jury, after the defendant had taken the stand in his own defense, that"[t]he deep personal interest which he may have in the result of thesuit should be considered * * * in weighing his evidence and in determininghow far or to what extent, if at all, it is worthy of credit." Id.at 304. This Court upheld the conviction on the ground that, "if [adefendant] avail himself of this privilege [of testifying on his own behalf],his credibility may be impeached, his testimony may be assailed, and isto be weighed as that of any other witness. Assuming the position of a witness,he is entitled to all its rights and protections, and is subject to allits criticisms and burdens." Id. at 305.5
Similarly, in Raffel v. United States, 271 U.S. 494 (1926), this Court heldthat a defendant who took the stand at his second trial after an initialmistrial could be cross-examined about his failure to testify at the firsttrial, even though it had by then become firmly established that in thefederal system a prosecutor was barred from commenting on a defendant'ssilence (see 18 U.S.C. 3481; Wilson v. United States, 149 U.S. 60 (1893)).Relying on Reagan, the Court reasoned that, "[w]hen [a defendant] takesthe stand in his own behalf, he does so as any other witness, and withinthe limits of the appropriate rules he may be cross-examined as to the factsin issue. * * * His failure to deny or explain evidence of incriminatingcircumstances of which he may have knowledge, may be the basis of adverseinference, and the jury may be so instructed." 271 U.S. at 497.6
More recently, in Brown, the Court held that when a defendant exerciseshis right to take the stand, "[h]e cannot reasonably claim that theFifth Amendment gives him not only this choice but, if he elects to testify,an immunity from cross-examination on the matters he has himself put indispute." 356 U.S. at 155-156. To the contrary, "his credibilitymay be impeached and his testimony assailed like that of any other witness,"lest the Constitution become "a positive invitation to mutilate thetruth." Id. at 154, 156.
The Court followed a similar rationale in Harris v. New York, 401 U.S. 222(1971), in which it held that, when a defendant elects to become a witness,he may be cross-examined with any statements the police may have elicitedfrom him in violation of Miranda v. Arizona, 384 U.S. 436 (1966). The Courtreasoned: "Having voluntarily taken the stand, petitioner was underan obligation to speak truthfully and accurately, and the prosecution heredid no more than utilize the traditional truth-testing devices of the adversaryprocess." 401 U.S. at 225.7
The Court revisited and reaffirmed this line of precedent in Jenkins v.Anderson, 447 U.S. 231 (1980), in which it held that the Fifth Amendmentdoes not bar the prosecution from using a defendant's prearrest silenceto impeach his credibility once he takes the stand. Relying on Raffel, Brown,and Harris, the Court reasoned that "[o]nce a defendant decides totestify, '[t]he interests of the other party and regard for the functionof courts of justice to ascertain the truth become relevant, and prevailin the balance of considerations determining the scope and limits of theprivilege against self-incrimination.'" Id. at 238 (quoting Brown,356 U.S. at 156).
Finally, in Perry, this Court held that, even though the Sixth Amendmentgenerally entitles a defendant to consult with counsel during trial, "whena defendant becomes a witness, he has no constitutional right to consultwith his lawyer while he is testifying." 488 U.S. at 281. The Courtexplained that cross-examination of any witness "is more likely toelicit truthful responses if it goes forward without allowing the witnessan opportunity to consult with third parties," a central premise ofsequestration and "nondiscussion" orders. Id. at 281-282. Similarly,the Court concluded, "when [a defendant] assumes the role of a witness,the rules that generally apply to other witnesses-rules that serve the truth-seekingfunction of the trial-are generally applicable to him as well." Id.at 282.
These cases each affirm a central principle of law: when a defendant electsto testify, he may not invoke his status as a defendant to avoid fair scrutinyas a witness. Rather, his credibility will be subject to the same comment,the same cross-examination, and the same jury instructions that any nonpartywitness would face in analogous circumstances. That principle controls thiscase.8 Just as it would be fair comment to note that a nonparty witnessmay have used access to other witnesses' testimony to fabricate his own,see p. 13, supra, it was fair comment here for the prosecution to observethat respondent enjoyed a unique opportunity to tailor his testimony, sofar as possible, to the facts established during the prosecution's case-in-chief.And, because the "central purpose of a criminal trial is to decidethe factual question of the defendant's guilt or innocence," UnitedStates v. Robinson, 485 U.S. 25, 33 (1988), it was fair comment that thejury was entitled to consider.

B. The "Penalty" Analysis of Griffin v. California Is InapplicableTo The Constitutional Question Presented Here

In its decision on rehearing, the majority below reasoned that, becausethe prosecutor had sought to "bolster[] * * * the prosecution witnesses'credibility vis-a-vis the defendant's based solely on the defendant's exerciseof a constitutional right to be present during the trial," the "constitutionalissue here is somewhat similar to that in Griffin v. California, 380 U.S.609, 613-615 (1965)." Pet. App. 72a-73a. That reasoning is unsound.
1. In Griffin, this Court held that the Fifth Amendment right against compelledself-incrimination bars the court and the prosecution from inviting thejury to draw an inference unfavorable to a defendant when he fails to testifyin response to the State's case. Official comment on a defendant's refusalto testify, the Court held, "is a penalty imposed * * * for exercisinga constitutional privilege. It cuts down on the privilege by making itsassertion costly." 380 U.S. at 614. Last Term this Court reaffirmedGriffin's bar on drawing an adverse factual inference from a nontestifyingdefendant's exercise of his right to remain silent in a criminal proceeding.See Mitchell v. United States, 119 S. Ct. 1307 (1999). As the Court observed,the rule was originally deemed necessary because of concerns that "[t]oomany, even those who should be better advised, view this privilege as ashelter for wrongdoers. They too readily assume that those who invoke itare either guilty of crime or commit perjury in claiming the privilege."Id. at 1315 (quoting Ullmann v. United States, 350 U.S. 422, 426 (1956)).
Although the Griffin rule has now "become an essential feature of ourlegal tradition," 119 S. Ct. at 1316, the Court has declined invitationsto extend that rule-or, more generally, Griffin's "penalty" analysis-beyondthe context of official comment on a defendant's silence at a criminal proceeding,and sometimes it has declined to apply it even in that context. For example,the Court recognized that its holding in Jenkins, supra, could discouragea criminal suspect from exercising his right to remain silent before hisarrest, since that silence could later be used to impeach him if he takesthe stand. The Court explained, however, that the "Constitution doesnot forbid 'every government-imposed choice in the criminal process thathas the effect of discouraging the exercise of constitutional rights.'"447 U.S. at 236 (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 30 (1973)).Similarly, in Robinson, the Court found Griffin's "penalty" analysisinapplicable where defense counsel had suggested that the government hadprecluded the defendant from explaining his side of the story and the prosecutorhad then told the jury, in his rebuttal summation, that the defendant "couldhave taken the stand and explained it to you." 485 U.S. at 26. TheCourt acknowledged that the prosecutor's comment imposed "some 'cost'to the defendant in having remained silent," but it nonetheless "decline[d]to expand Griffin to preclude a fair response by the prosecutor in situationssuch as the present one." Id. at 34.
Invocation of Griffin's "penalty" analysis is even less appropriatehere than it was in Jenkins and Robinson. Unlike those cases, this casedoes not even involve prosecutorial comment on a defendant's silence. Instead,it involves prosecutorial comment on the defendant's attendance at trialand his resulting unique familiarity with the testimony of other witnesses.For several reasons, such comment poses none of the concerns that gave riseto Griffin's rule.
First, Griffin holds that a court or prosecutor may not ask the jury toinfer that a defendant is guilty because he has exercised a particular constitutionalright: the right to remain silent. Here, the prosecutor obviously did notask the jury to infer that respondent was guilty because he attended trial.To the contrary, she asked the jury to bear in mind (as it might well havedone in any event) that respondent's attendance throughout trial, whilecompletely unsuspicious in its own right, would nonetheless make it easierfor him to tailor any fabricated testimony to the facts established duringthe prosecution's case-in-chief.
Put another way, whereas the Griffin rule originated in response to an empiricalconcern that jurors "too readily assume" that those who invokethe Fifth Amendment are for that very reason guilty, Mitchell, 119 S. Ct.at 1315, there is no analogous concern here. Few jurors would draw any connection,much less an exaggerated one, between a defendant's attendance at his owntrial and the likelihood of his guilt. Indeed, the law in most jurisdictionscompels a defendant's presence at trial (see, e.g., Pet. App. 59a), andeven if it did not, most jurors would understand that even innocent defendantswould take a criminal trial seriously enough to attend.9 For similar reasons,whereas prosecutorial comment on a defendant's refusal to testify puts pressureon defendants to surrender their right to remain silent, it is inconceivablethat the prospect of comments like those at issue here could ever induceany defendant to remain absent from trial (even if he were legally freeto do so).
Finally, the majority's reliance on Griffin overlooks the basic distinction,discussed above, between the defendant as defendant and the defendant aswitness. The comment at issue in Griffin encouraged the jury to construea nontestifying defendant's silence as substantive evidence of his guilt.In contrast, the comment at issue here asked the jury to consider a testifyingdefendant's familiarity with the testimony of other witnesses as a factorin assessing his credibility as a witness. See generally Robinson, 485 U.S.at 32-34; see also Tr. 827 (instructing jury on distinction between evidenceand arguments of counsel). Because a testifying defendant's "credibilitymay be impeached and his testimony assailed like that of any other witness,"Brown, 356 U.S. at 154, Griffin simply has no application to this case.10

2. In its decision on rehearing, the panel majority "retreat[ed] fromany language in [its] prior opinions suggesting that it is constitutionalerror for a prosecutor to make a factual argument that a defendant usedhis familiarity with the testimony of the prosecution witnesses to tailorhis own exculpatory testimony." Pet. App. 72a. The majority soughtto confine its Griffin analysis to cases in which the prosecution makes"not a factual argument based on the defendant's testimony in thisparticular case[,] but a generic argument that a defendant's credibilityis less than that of prosecution witnesses solely because he attended theentire trial while they were present only during their own testimony."Ibid. That distinction is unworkable in practice and is in any event doctrinallyunsound.
The majority's analysis would turn on the specificity of the factual elaborationthat accompanies the prosecutor's observation that a defendant's presenceat trial enables him to tailor his testimony to that of other witnesses.As an initial matter, that analysis would be highly indeterminate, as thiscase itself illustrates. The prosecutor here did not make the comments atissue in isolation or "generic[ally]" (Pet. App. 72a); she madethem amid a lengthy factual exposition of reasons why the jury should ultimatelyfind the complaining witnesses more credible than respondent. See J.A. 28-52;pp. 3-4, supra. The dissent below was thus correct in observing that "theprosecutor was not disinterestedly discussing 'a' defendant. She was challengingthe testimony given by 'the' defendant in the instant case. * * * The issuein the case was credibility, and conscientious counsel could not avoid discussingit in their summations." Pet. App. 75a-76a.11
Moreover, even if the prosecutor's comments here were in some sense "generic,"nothing in the Constitution bars the government from making fair generalizationsat the close of trial. Indeed, the jury instruction that this Court approvedin Reagan-which encouraged the jury to consider "[t]he deep personalinterest" of any testifying defendant "in weighing his evidenceand in determining how far or to what extent, if at all, it is worthy ofcredit" (157 U.S. at 304)-was far more "generic," and potentiallymore unfavorable to any defendant, than the prosecutor's comments at issuehere.12
Most fundamentally, the panel majority's proposed distinction between permissiblyspecific and impermissibly "generic" prosecutorial comments answersthe wrong question. For the reasons discussed above, Griffin's "penalty"analysis is conceptually inapposite to any comment on a defendant's presenceat trial, whether specific or generic. That is not to say that officialcomment on a defendant's attendance at trial during the testimony of otherwitnesses is invariably permissible. The defense might object to such commentjust as the defense could object to any other argument: i.e., as an unfair,irrelevant, or arbitrary attack on a defendant.13 If improper on those grounds,such comment might require reversal if it "so infected the trial withunfairness as to make the resulting conviction a denial of due process."Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974).14 But there is no doctrinalbasis for challenging the type of comment that was made in this case onthe theory that it unconstitutionally "burdens" or "penalizes"a defendant's right to attend trial, and the panel majority erred in approachingthe case from that perspective.

The judgment of the court of appeals should be reversed.
Respectfully submitted.