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VOLUME 3 - CHAPTER 18
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18.5 Testimony Of Defendant

    18.5.3 Jury Consideration Of The Fact Defendant Attended The Trial

    18.5.3.1 Consideration Of Defendant's Trial Attendance: Opening The Door For Consistent Statements
    18.5.3.2 Consideration Of Defendant's Trial Attendance: Defense Argument As To Prosecution Witness
    18.5.3.3 Consideration Of Defendant's Trial Attendance: Request That Defendant Be Allowed To Testify Before The Prosecution Witnesses

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PRACTICE NOTE: A potential strategy for counteracting Portuondo v. Agard (2000) 529 US 61 [120 SCt 1119; 146 LEd2d 47] would be to argue for admission of consistent statements. In some cases such an argument may open the door to admission of prior consistent statements which the defendant may have made before hearing the testimony of the witnesses at trial.

See 6th Circuit Pattern Jury Instructions - Criminal 7.02B

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PRACTICE NOTE: Portuondo v. Agard (2000) 529 US 61 [120 SCt 1119; 146 LEd2d 47] held that it is not unconstitutional for a prosecutor to call the jury's attention to the fact that a testifying defendant, thanks to his presence throughout the trial, had the opportunity to tailor his testimony to harmonize with that of other witnesses.

    A potential strategy for counteracting Agard would be to argue that the same argument should apply to prosecution witnesses who were present throughout trial. The same argument of tailored testimony should also be available to the defense when a prosecution witness, such as the designated investigating officer, was present in court during the testimony of the other witnesses. (See Wardius v. Oregon (1973) 412 US 470 [93 SCt 2208; 37 LEd2d 82].)

See 6th Circuit Pattern Jury Instructions - Criminal 7.02B

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VOLUME 3 - CHAPTER 18

PRACTICE NOTE: Portuondo v. Agard (2000) 529 US 61 [120 SCt 1119; 146 LEd2d 47] held that it is not unconstitutional for a prosecutor to call the jury's attention to the fact that a testifying defendant, thanks to his presence throughout the trial, had the opportunity to tailor his testimony to harmonize with that of other witnesses.

    Potential strategies for counteracting Agard could include opening the door for consistent statements. (See FORECITE National™ 18.5.3.1 [Opening The Door For Consistent Statements].)

    Defense Argument As To Prosecution Witness.  See FORECITE National™ 18.5.3.2 [Defense Argument As To Prosecution Witness].

    Request That Defendant Be Allowed To Testify Before The Prosecution Witnesses. In those cases where the defendant is always intending to testify, the defense may wish to consider requesting permission from the trial court to take the defendant out of order as a witness -- even to the extent that the defendant should be permitted to testify before the entire prosecution case, if need be. The order of proof is a matter which is in the court's discretion. (See Imwinkelried, Giannelli, Gillian, Lederer, Courtroom Criminal Evidence (Lexis, 3rd ed, 1998) § 101, p. 13; FRE 611; California Evidence Code § 320.) By contrast, the defendant's right to testify is constitutional and fundamental in nature. (See Rock v. Arkansas (1987) 483 US 44 [107 SCt 2704; 97 LEd2d 37].) The defendant shouldn't have to choose between a significant impairment of that right (the trial court's "comment on potential lying") and foregoing that right altogether, if a less intrusive alternative can be found which would require neither. (Cf., Simmons v. United States (1968) 390 US 377, 394 [88 SCt 967; 19 LEd2d 1247] [discussing intolerability of certain types of "constitutional tensions"].) Taking the defendant out of order as a witness certainly seems to qualify.

See generally, FORECITE National™ 305.4.4 [Defendant's Testimony].

See 6th Circuit Pattern Jury Instructions - Criminal 7.02B.