by Thomas Lundy

A.     Introduction

    Portuondo v. Agard (2000) 529 US 61 [120 SCt 1119; 146 LEd2d 47] allows the prosecution to expressly discredit the testimony of the defendant by arguing that the defendant unfairly had an opportunity to hear all the other witnesses before testifying. This might be one of those problems that is best left alone, so as not to highlight it. Nevertheless, below are a few ideas for jury instructions to counter or limit the impact of Agard.

    Justice Stevens’ concurrence in Agard suggests that cautionary jury instructions may be appropriate when the prosecutor implied that the defendant tailored his or her testimony:

    While I am not persuaded that the prosecutor’s summation crossed the high threshold that separates trial error -- even serious trial error -- from the kind of fundamental unfairness for which the Constitution requires that a state criminal conviction be set aside, cf. Rose v. Lundy, 455 U.S. 509, 543-544, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982), I must register my disagreement with the Court’s implicit endorsement of her summation.

    The defendant’s Sixth Amendment right "to be confronted with the witnesses against him" serves the truth-seeking function of the adversary process. Moreover, it also reflects respect for the defendant’s individual dignity and reinforces the presumption of innocence that survives until a guilty verdict is returned. The prosecutor’s argument in this case demeaned that process, violated that respect, and ignored that presumption. Clearly such comment should be discouraged rather than validated.

    The Court’s final conclusion, which I join, that the argument survives constitutional scrutiny does not, of course, deprive States or trial judges of the power either to prevent such argument entirely or to provide juries with instructions that explain the necessity, and the justifications, for the defendant’s attendance at trial.

    Accordingly, although I agree with much of what JUSTICE GINSBURG has written, I concur in the Court’s judgment.

(Portuondo v. Agard, 120 S. Ct. 1119, 1129 (2000), Stevens, J., concurring.)

    A defendant in a criminal trial has the constitutionally protected right to confront the witnesses appearing before deciding whether to testify. This right of confrontation guarantees the defendant the opportunity to hear and cross-examine prosecution witnesses and to call defense witnesses before deciding, with the assistance of counsel, whether or not to take the stand as a witness and testify.

    You must not draw any inference adverse to the defendant simply because [he] [she] exercised [his] [her] constitutional right to be present in court during trial and to testify at the end of the case.

[Cf., State v. Daniels, 364 N.J. Super. 357, 835 A.2d 1261 (2003); Brooks v. Tennessee, 406 U.S. 605 (1972).]

    The defendant has a perfect right to be present in court when other witnesses are testifying. You must not penalize the defendant merely because [he] [she] exercised this right.

[Cf., Commonwealth v. Elberry, 38 Mass. App. Ct. 912, 645 N.E.2d 41,43 (1995); Brooks v. Tennessee, 406 U.S. 605 (1972).]

    Every defendant in a criminal case has an absolute right to testify as the only or last witness in the defense case. __________ (name of defendant) has chosen to exercise [his] [her] right to so testify. You must not hold this decision against him/her. It would be improper for you to speculate as to the reason or reasons for [his] [her] decision, and you are specifically instructed not to do so. You must not draw any inference adverse to __________ (name of defendant) from [his] [her] decision.

[See Rock v. Arkansas, 483 U.S. 44 (1987); Brooks v. Tennessee, 406 U.S. 605 (1972).]