529 U.S. 61 (2000)
Ray Agard was tried in New York state court on multiple counts including sodomy and assault.1 The alleged victim Nessa Winder and her friend Breda Keegan testified that Agard physically assaulted, raped, and orally and anally sodomized Winder while threatening both women with a handgun.2 Agard testified that he and Winder had engaged in consensual vaginal intercourse and that during an argument he struck her once in the face, while denying that he raped her or threatened either woman with a handgun.3
During cross-examination, the prosecutor asked Agard whether, during the time between his arrest and the trial, he had the opportunity to hear the victim's testimony at the preliminary hearing and to hear the testimony of the other State's witnesses at that hearing and at trial.4 In summation, the prosecutor remarked that unlike all the other witnesses, the defendant has a benefit.5 The benefit that he has, unlike all the other witnesses, is he gets to sit here and listen to the testimony of all the other witnesses before he testifies.6 The prosecutor further remarked that this gives the defendant a big advantage to think what he is going to say and how he is going to fit it into the evidence.7 The prosecutor concluded that the defendant used everything to his advantage.8
The trial court rejected defense counsel's objection that the comments violated Agard's right to be present at trial.9 The court stated that respondent's status as the last witness in the case was simply a matter of fact and held that his presence during the entire trial and the advantage that this afforded him may fairly be commented on.10 Agard was convicted of one count of anal sodomy and two counts of third-degree possession of a weapon.11 On direct appeal, the New York Supreme Court reversed one of the convictions for possession of a weapon but affirmed the remaining convictions.12 The New York Court of Appeals denied leave to appeal.13
Agard 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confront his accusers and his Fourteenth Amendment right to due process.14 The District Court denied the petition in an unpublished order.15 A divided panel of the Second Circuit reversed, holding that the prosecutor's comments violated respondent's Fifth, Sixth, and Fourteenth Amendment rights.16 The Supreme Court granted certiorari.17
Whether a prosecutor's comments during summation on a defendant's presence at trial and opportunity to hear other witnesses testify violate the defendant's Fifth and Sixth Amendment rights to be present, confront witnesses, and testify in his own defense?18
The prosecutor's comments on a defendant's presence at trial to impeach credibility do not violate the Fifth and Sixth Amendment rights to be present, confront witnesses, and testify in his own defense, because such comments are fair attacks on credibility consistent with the truth-seeking function of trial, and the right to testify does not include a right to be free from such impeachment.19
No. The established facts show that during cross-examination the prosecutor asked Agard whether he had the opportunity to hear the victim's testimony at the preliminary hearing and the testimony of other State's witnesses at that hearing and at trial.20 In summation the prosecutor remarked that unlike all the other witnesses the defendant has the benefit of sitting and listening to all other witnesses before testifying.21 This gave him a big advantage to think what to say and how to fit it into the evidence.22 The prosecutor added that the defendant used everything to his advantage.23
These comments concerned Agard's credibility as a witness rather than suggesting his presence was evidence of guilt and therefore did not burden his constitutional rights to be present and to testify.24 The jury is entitled to consider the fact that a defendant who testifies last has heard the other testimony when assessing credibility.25
The prosecutor's comments did not violate Agard's Fifth and Sixth Amendment rights.26
Related opinions on this issue
Joined by Justice Ginsburg Joins As To Part Ii
Justice Stevens dissented on the ground that the prosecutor's comments were a direct attack on respondent's exercise of his Sixth Amendment right to be present at his own trial and his Fifth and Sixth Amendment rights to testify in his own defense.27 By suggesting that respondent's presence at trial and his decision to testify were evidence that his testimony was tailored to fit the State's case, the prosecutor invited the jury to draw an adverse inference from the exercise of these constitutional rights.28 This the Constitution does not permit.29
The comments violated the fundamental principle that the Constitution prohibits the Government from using a defendant's exercise of his constitutional rights as evidence of guilt.30
Whether such comments violate the defendant's Fourteenth Amendment right to due process?31
The comments do not violate due process because there is no implicit assurance that presence at trial will carry no penalty on credibility, unlike Miranda warnings, and mandatory presence does not impair credibility in a way that violates due process.32
No. Although New York law required Agard to be present at trial, the prosecutor's comments on that presence to attack credibility did not violate due process.33 No promise of impunity is implicit in the statute requiring presence.34 The impairment of credibility if any caused by mandatory presence does not violate due process.35
The comments did not violate Agard's Fourteenth Amendment right to due process.36
Related opinions on this issue
Joined by Justice Souter
Justice Ginsburg filed a concurring opinion.37 She explained her understanding that the Court holds a prosecutor may comment on a defendant's presence at trial and his opportunity to tailor his testimony to that of other witnesses.38 The Court does not decide whether a prosecutor may comment in a way that invites the jury to draw an adverse inference from the mere fact of the defendant's presence.39
The prosecutor's comments in this case were directed at the credibility of respondent's testimony.40 The prosecutor suggested that respondent had tailored his testimony to fit the evidence that he had heard during the course of the trial.41 The prosecutor did not suggest that the jury should draw an inference of guilt from the mere fact that respondent was present at trial.42
Such a comment would have been improper.43 She also agreed that any constitutional error was harmless because the evidence against respondent was strong and the comments about tailoring were a small part of a larger attack on credibility.44
Whether any constitutional error from the comments was harmless?45
Even if the comments were constitutionally impermissible, the error would be harmless. The weight of the evidence against the defendant was heavy. The comment was a small part of a more general attack on credibility in a lengthy summation.46
Yes. The weight of the evidence against Agard was heavy, consisting of the testimony of the victim and her friend on the assault, rape, and sodomy charges.47 The comment on tailoring was made in the context of a more general attack on Agard's credibility, including his interest in the outcome, prior felony conviction, and prior bad acts.48 The comment was a small part of the prosecutor's lengthy summation.49
Any constitutional error from the comments was harmless.50