Portuondo v. Agard - Opinion Announcement

Argument of Justice Scalia

Mr. Scalia: The second case is No. 98-1170, Portuondo versus Agard, and here the respondent was convicted in the New York Courts, of anal sodomy and third degree possession of a weapon.

His trail ultimately came down to a credibility determination, as part of her attack on his credibility, the prosecutor call to the jury’s attention, the fact that he had the opportunity to hear all other witness testify and to tailor his testimony accordingly.

The Trial Court rejected respondent’s objection that these comments violated his right to be present at trial.

After exhausting his state appeals, the respondent filed a petition for habeas corpus relief in Federal Court, claiming that the prosecutor’s comments violated his Fifth and Sixth Amendment rights to be present at trial and confront his accusers and his Fourteenth Amendment right to due process.

The District Court denied his petition but the Second Circuit reversed and ruled for the respondent.

In an opinion authored by Justice Scalia and filed with the Clerk today, we reverse the Second Circuit.

The prosecutor’s comment did not violate respondent’s Fifth and Sixth Amendment rights.

As a threshold matter respondent’s claim find no historical support, either in 1791, when the Bill of Rights of adopted, nor in 1868 when according to our jurisprudence, the Fourteenth Amendment extended, the structures of the Fifth and Sixth Amendments of the state.

Respondent's claim, therefore boils down to a request that we extend to his case, the reasoning we adopted in a case called Griffin versus California, decided about 20 years ago.

There we held that at Trial Court’s instruction that the jury could consider the defendant’s failure to testify as indication of his guilt unconstitutionally burdened the defendant’s privilege against self-incrimination but Griffin is a poor analog for the case now before us.

It prohibit the prosecution from urging the jury to do something that jury is not permitted to do.

Upon request, a court must instruct a jury not to count a defendant’s silence against him.

It is however natural and irresistible for a jury in evaluating the relative credibility of a defendant who testifies last to have in mind and weigh in the balance, the fact that he has heard the testimony of everybody who preceded him.

We hold that the prosecutor’s comment also did not violate the respondent’s Fourteenth Amendment right to due process.

The respondent argues that it was improper to comment on his presence at trial because New York Law requires him to be present.

To support this argument, he points to our decision in Doyle against Ohio, which held that the prosecution can’t impeach a defendant with his silence after being read a Miranda Warning, because that warning we held carries an implicit assurance, that silence will carry no penalty but no promise is implicit in a statute simply requiring a defendant to be present to trail.

Justice Stevens has filed an opinion concurring in the judgment, in which Justice Breyer has joined; Justice Ginsburg has filed a dissenting opinion in which Justice Souter has joined.