Portuondo v. Agard — Ginsburg, J., dissenting

Summary

Justice Ginsburg, joined by Justice Souter, dissents from the Court’s decision that a prosecutor may, in summation, comment that a defendant’s presence at trial permits him to tailor his testimony, arguing that such commentary improperly burdens the Sixth Amendment right to be present and undermines the truth‑seeking function of trial. The dissent relies on Griffin, Doyle, and other precedents to contend that the mere fact of presence is ambiguously linked to guilt and should not be used to impeach credibility. Justice Stevens, in a concurring opinion, agrees with the judgment but warns that the prosecutor’s argument demeans the defendant’s dignity and should be discouraged.