The Unrecognized Right of Criminal Defendants to Admit Their Own Pretrial Statements

In Agard v. Portuondo, the United States Supreme Court held that a prosecutor did not violate a testifying defendant's constitutional rights by inviting the jury to infer from the defendant's presence at trial that the defendant altered his own version of events to accord with other witnesses' testimony. Justice Scalia's opinion for the Court emphasized that jurors might well draw the inference even without a prosecutor asking them to do so. Although Agard is viewed as giving an advantage in a criminal trial to the government, this Article considers how Agard might be used to allow defense counsel to introduce the prior consistent statements of defendants that ordinarily could not be admitted under the rules of evidence. The Article discusses some procedural implications of admitting a defendant's pretrial statements--in response to the prosecution's Agard argument, or simply in an effort to negate the possibility that the jury will draw an inference on its own even if the prosecutor makes no Agard argument. It concludes by examining the potential effect that admission of prior consistent statements could have on defense strategy at trial, and illustrates with some examples of what defense counsel could do post-Agard to demonstrate that the defendant's testimony was not the product of hearing the testimony of government witnesses. TABLE OF CONTENTS INTRODUCTION I. PORTUONDO V. AGARD: FACTUAL BACKGROUND AND SUPREME COURT DECISION A. Factual Background B. Road to the Supreme Court C. Supreme Court Decision 1. The Majority Opinion a. Distinguishing Griffin v. California b. The Reasonable Jury c. Generic Versus Specific Comments d. Cross-examination Versus Summation 2. Justice Stevens's Concurring Opinion 3. Justice Ginsburg's Dissent II. ADMISSIBILITY OF PRIOR CONSISTENT STATEMENTS OF AN ACCUSED AFTER AGARD A. Admission of Defendants' Pretrial Statements Following an Attack: Federal Rule of Evidence 801(d)(1)(B) B. Admission of Defendants" Pretrial Statements Absent an Attack C. The Instruction Alternative III. PROCEDURAL IMPLICATIONS OF ADMITTING DEFENDANTS' PRETRIAL STATEMENTS AT SUMMATION IV. THE EFFECTS ON DEFENSE STRATEGY OF PERMITTING ADMISSION OF DEFENDANTS' PRETRIAL STATEMENTS A. To Whom Is the Statement Made? B. The Impact on Discovery V. POST-AGARD TRIAL EXAMPLES A. Tailoring in Response to Pretrial Discovery B. Comparing the Defendant and Other Witnesses C. Capital Cases D. Attacking the Defense E. Prior Inconsistent Statements F. When Comment Is Prohibited CONCLUSION INTRODUCTION On March 6, 2000, the United States Supreme Court decided Portuondo v. Agard. (1) The case did not receive much fanfare when it was handed down, and it has largely been ignored by commentators, prosecutors, and defense counsel. (2) When the case has been considered, the issue generally has been whether a state court should permit the same type of prosecutorial argument that the Supreme Court permitted. (3) Yet, we believe that the result in Agard has important--and positive--implications for criminal defendants and their counsel. This Article considers how Agard might be used to allow the defense to introduce prior consistent statements of the defendant--statements that ordinarily cannot be admitted under the rules of evidence. The Court in Agard held that the prosecutor did not violate the testifying defendant's constitutional rights by inviting the jury to draw an adverse inference from the defendant's presence at trial. (4) Specifically, it was permissible for the prosecutor to point out that, unlike all the other witnesses, the defendant was not sequestered during trial. Consequently, the defendant had the opportunity to hear all the trial testimony, and thereby to tailor his own testimony to that of the witnesses who preceded him. Although the defendant lost in Agard, this Article argues that the Court's opinion opened a door for criminal defendants to introduce evidence that had heretofore been excluded. …