Portuondo v. Agard

Summary

The Court held that a prosecutor’s comments on a defendant’s opportunity to tailor his testimony by listening to other witnesses before testifying do not violate the Fifth or Sixth Amendments or the Fourteenth Amendment’s Due Process Clause. The Court distinguished Griffin v. California, reasoning that unlike silence, a defendant’s presence is something jurors naturally consider when evaluating credibility. Justice Ginsburg dissented, arguing the comment impermissibly burdens the right to be present. Justice Stevens concurred in the judgment, maintaining the comment should be discouraged though the Constitution does not mandate reversal.