## Facts

- A New York criminal trial turned on whether the jury credited the victim and her friend or the defendant’s conflicting account.
- The defendant attended the entire trial and then testified in his own defense.
- In closing argument, the prosecutor attacked the defendant’s credibility by stating that, unlike other witnesses, he heard all prior testimony and therefore had the opportunity to tailor his testimony to fit the evidence.
- Defense counsel objected that this argument penalized the defendant’s right to be present at trial; the trial court overruled the objection.
- The jury convicted the defendant.

## Issues

1. Whether a prosecutor violates the Fifth, Sixth, or Fourteenth Amendments by arguing in summation that a defendant who testified had the opportunity to tailor his testimony because he was present for, and heard, other witnesses.

## Decision

- The Supreme Court reversed the federal court of appeals and denied habeas relief.
- The Court held that the prosecutor’s “tailoring” comments did not violate the Fifth Amendment privilege against self-incrimination because the defendant testified, and the argument did not treat silence as evidence of guilt.
- The Court held that the comments did not violate the Sixth Amendment rights to be present and to confront witnesses because highlighting a tactical advantage associated with those rights is not itself unconstitutional.
- The Court held that the comments did not deny due process under the Fourteenth Amendment.
- The Court approved generic tailoring arguments even without pointing to specific proof of tailoring and found no constitutional defect in making the argument during summation.

## Legal Principles

- When a defendant testifies, his credibility may be impeached and argued to the jury like that of any other witness, subject to ordinary trial limits.
- The constitutional bar on prosecutorial comment on a defendant’s silence does not extend to comment on a testifying defendant’s opportunity to shape testimony after hearing other witnesses.
- A prosecutor may ask jurors to consider, in assessing credibility, that a testifying defendant heard prior testimony and thus had an opportunity to tailor his account, even as a general inference rather than one tied to particular inconsistencies.

## Conclusion

The Court held that a prosecutor’s closing argument noting a testifying defendant’s opportunity to tailor testimony based on hearing other witnesses is constitutionally permissible and does not, by itself, violate the Fifth, Sixth, or Fourteenth Amendments.


Portuondo v. Agard, 529 U.S. 61 (2000)