Portuondo v. Agard

In Portuondo v. Agard, 529 U.S. 61 (2000), the United States Supreme Court squarely addressed the issue before us today, that is, whether it is consistent with due process for a prosecutor, during summation, to call the jury's attention to the fact that the defendant had the opportunity to hear all the other witnesses testify and had the ability to tailor his testimony accordingly. The court stated that "it is natural and irresistible for a jury, in evaluating the relative credibility of a defendant who testifies last, to have in mind and weigh in the balance the fact that he heard the testimony of all those who preceded him." Id., 67-68. In concluding that the comments were proper, the court held: "Allowing comment upon the fact that a defendant's presence in the courtroom provides him a unique opportunity to tailor his testimony is appropriate--and indeed, given the inability to sequester the defendant, sometimes essential--to the central function of the trial, which is to discover the truth." Id., 73.