# Portuondo v. Agard

> Supreme Court of the United States · March 6, 2000 · 529 U.S. 61

URL: https://www.frixlaw.com/law-library/cases/9499807

## Case

- **Full name:** Portuondo, Superintendent, Fishkill Correctional Facility v. Agard
- **Court:** Supreme Court of the United States
- **Decided:** March 6, 2000
- **Citations:** 529 U.S. 61; 13 Fla. L. Weekly Fed. S 145; 2000 Colo. J. C.A.R. 1213; 2000 Daily Journal DAR 2419; 68 U.S.L.W. 4176; 2000 Cal. Daily Op. Serv. 1757; 120 S. Ct. 1119; 146 L. Ed. 2d 47; 2000 U.S. LEXIS 1739
- **Precedential status:** Published
- **Opinion:** Concurrence by Stevens
- **Judges:** Scalia, Rehnquist, O'Connor, Kennedy, Thomas, Stevens, Breyer, Ginsburg, Souter
- **Cited by:** 298 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9499807

## How later opinions describe it (automated extraction)

- holding that it is constitutional for prosecutor to draw attention to fact that defendant had “opportunity to hear all other witnesses testify and to tailor his testimony accordingly,” id. at 63, 120 S.Ct. 1119, when it is “natural and irresistible” for jury to note opportunit…
- holding that “[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…
- explaining that it is the Court’s “longstanding rule that when a defendant takes the stand, ‘his credibility may be impeached and his testimony assailed like that of any other witness.’” (quoting Brown v. United States, 856 U.S. 148, 154, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958))
- holding that a defendant’s silence after receiving Miranda warnings did not warrant a prosecutor’s attack on his credibility
- holding that prosecutor’s comment during sentencing that the defendant had the opportunity to hear other witnesses and testify was not impermissible under Griffin, but merely a comment concerning the petitioner’s credibility as a witness

## Opinion text

Justice Stevens,
with whom Justice Breyer joins, concurring in the judgment.
While I am not persuaded that the prosecutor’s summation crossed the high threshold that separates trial error — even serious trial error — from the kind of fundamental unfairness for which the Constitution requires that a state criminal conviction be set aside, cf. Rose v. Lundy, 455 U. S. 509, 543-544 (1982), I must register my disagreement with the Court’s implicit endorsement of her summation.
The defendant’s Sixth Amendment right “to be confronted with the witnesses against him” serves the truth-seeking function of the adversary process. Moreover, it also reflects respect for the defendant’s individual dignity and reinforces the presumption of innocence that survives until a guilty verdict is returned. The prosecutor’s argument in this case demeaned that process, violated that respect, and ignored that presumption. Clearly such comment should be discouraged rather than validated.
The Court’s final conclusion, which I join, that the argument survives constitutional scrutiny does not, of course, deprive States or trial judges of the power either to prevent such argument entirely or to provide juries with instructions that explain the necessity, and the justifications, for the defendant’s attendance at trial.
Accordingly, although I agree with much of what Justice Ginsburg has written, I concur in the Court’s judgment.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9499807. Public record. Not legal advice.