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III. The Confrontation Clause's basis in the accuracy of the fact-finding process does not support an extension of Griffin.

A. Confrontation and the Truth.

"The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. The word 'confront,' after all, also means a clashing of forces or ideas, thus carrying with it the notion of adversariness." Maryland v. Craig, 497 U. S. 836, 845 (1990).

Physical confrontation between defendant and the witness advances this goal because it is more difficult to falsely accuse someone to that person's face. "A witness 'may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts. He can now understand what sort of human being that man is.' " Coy, supra, 487 U. S., at 1019 (internal quotation marks omitted). Thus, "[i]t is always more difficult to tell a lie about a person 'to his face' than 'behind his back.' " Ibid.; see also Ohio v. Roberts, 448 U. S. 56, 63, n. 6 (1980); 3 W. Blackstone, Commentaries 373 (1st ed. 1768). Public perception of the need for physical confrontation comports with reality, which explains physical confrontation's importance in maintaining both the perception and the reality of a fair criminal trial. See Coy, 487 U. S., at 1018-1019.

While physical confrontation is at " 'the core of the values furthered by the Confrontation Clause,' " Craig, supra, 497 U. S., at 847 (quoting California v. Green, 399 U. S. 149, 157 (1970)), this Court has "nevertheless recognized that it is not the sine qua non of the confrontation right." Ibid. Instead, cross-examination, the oath, and demeanor give "all that the Sixth Amendment demands: 'substantial compliance with the purposes behind the confrontation requirement.' " Roberts, supra, 448 U. S., at 69 (quoting Green, 399 U. S., at 166); accord Craig, 497 U. S., at 847. Therefore confrontation "is generally satisfied when the defense is given a full and fair opportunity to probe and expose [testimonial] infirmities through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony." Delaware v. Fensterer, 474 U. S. 15, 22 (1985) (per curiam).

The Sixth Amendment is a trial right which "must also be interpreted in the context of the necessities of trial and the adversary process." Craig, supra, 497 U. S., at 850. Literal compliance with the words of the Confrontation Clause is thus avoided as impractical. The clearest example is hearsay testimony; a literalist view of the right to confrontation would forbid any hearsay from being admitted against the accused, an unacceptable outcome. See Roberts, supra, 448 U. S., at 63. Instead, this Court steers "a middle course among proposed alternatives" for interpreting the Confrontation Clause. Id., at 68, n. 9. Absolutism is similarly absent from face-to-face confrontation. "We have never held, however, that the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with witnesses against them at trial." Craig, 497 U. S., at 844 (emphasis in original).

Therefore, this Court has "never insisted on an actual face-to-face encounter at trial in every instance in which testimony is admitted against a defendant." Id., at 847 (emphasis in original). Hearsay statements can be admitted against defendant if they have "sufficient 'indicia of reliability' . . . ." Mancusi v. Stubbs, 408 U. S. 204, 216 (1972) (quoting Dutton v. Evans, 400 U. S. 74, 89 (1970)). The less important physical confrontation with the testifying witness is subject to the same limitations. This right can be dispensed with when it "is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured." Craig, 497 U. S., at 850.⁽³⁾

Although the Craig Court notes that the confrontation right is not "easily . . . dispensed with," id., at 850, the district attorney's argument in the present case is far from the total denial of physical confrontation at issue in Craig. As the next section demonstrates, the People's argument did not burden this least important confrontation right, and it actually advanced the Confrontation Clause's goal of aiding the accuracy of the verdict.

B. The Right Choice.

1. Choice and accuracy.

While the complete elimination of some aspect of confrontation may only be justified when "necessary to further an important public policy," Craig, supra, 497 U. S., at 850, the mere indirect burden in the present case warrants less demanding justification. Defendant only bears this cost if he chooses to testify.⁽⁴⁾ Just as Griffin v. California, 380 U. S. 609 (1965) does not insulate a defendant from making choices, see supra, at 13-14, neither does the Sixth Amendment insulate defendant from the consequences of his decisions.

In United States v. Nobles, 422 U. S. 225, 228-229 (1975), the District Court conditioned the admissibility of impeachment testimony by a defense witness on the production of an investigative report prepared by the witness, a defense investigator. When counsel declined to produce the report, the District Court ruled that the investigator could not testify about the items contained in the report, namely interviews with prosecution witnesses. Defendant attacked this under Sixth Amendment's confrontation and compulsory process rights, which this Court concluded, "misconceives the issue." Id. at 241. Defendant was not prevented from presenting his witness or impeaching prosecution witnesses. The District Court "merely prevented respondent from presenting to the jury a partial view of the credibility issue . . . ." Ibid. As this Court concluded: "The Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system; one cannot invoke the Sixth Amendment as a justification for presenting what might have been a half-truth." Ibid.

As the Confrontation Clause is intended to help find the truth, any burden on defendant's confrontation that gives accurate information to the jury is a "legitimate demand[] of the adversarial system . . . ." Ibid. Nobles demonstrates that if the district attorney's remarks were correct, then defendant's confrontation right was not violated.

2. Finding the truth.

The cost of failing to sequester the witness varies with the type of testimony he or she heard. A prospective witness who heard testimony of the opposing side "could thus ascertain the precise points of difference between their testimonies, and could shape his own testimony to better advantage for his cause." Ibid. Preventing this will thus inhibit false testimony. See ibid. The separation of witnesses from the same side achieves even more: the detection of false testimony. If witnesses of the same side cannot keep the details of their stories consistent, then at least one witness on that side must be either lying or mistaken; by contrast, if witnesses from opposing sides contradict each other then the jury must go through "the troublesome uncertainty" of having to weigh the credibility of the opposing witnesses. See id., at 462.

Sequestration is not perfect; allowances must be made for honest mistakes, and it may not catch sufficiently well-planned perjury. Nonetheless, sequestration is a powerful tool to help the jury find the truth.

"But when all allowances are made, it remains true that the expedient of sequestration is (next to cross-examination) one of the greatest engines that the skill of man has ever invented for the detection of liars in a court of justice. Its supreme excellence consists in its simplicity and (so to speak) its automatism; for while cross-examination, to be successful, often needs the rarest skill, and is always full of risk to its very employers, sequestration does its service with but little aid from the examiner, and can never, even when unsuccessful, do serious harm to those who have invoked it." Id., at 463.

Unfortunately, the witness with the greatest incentive to tailor testimony, the criminal defendant, is the one witness who cannot be sequestered. See Geders v. United States, 425 U. S. 80, 88 (1976). In Geders, defendant was prevented from talking with counsel during an overnight recess which had been called just as he was to be cross-examined. Id., at 82. This Court appreciated the substantial interests served by sequestration, see id., at 87, but this mini-sequestration did not serve that interest well because defendant's right to attend the trial gave him ample opportunity to tailor his testimony. See id., at 88. Given the substantial hardship to defendant from the trial court's order, this Court held that some lesser means should be used to deal with coaching. Among the possibilities were skillful cross-examination, which might develop a record for counsel to exploit during closing argument. Id., at 89-90.

The closing argument in the present case represents this type of reasonable accommodation. The threat of tailoring is a fact: witnesses can and do tailor testimony, if given the opportunity. Since defendant has so much at stake, and is entitled to be the last witness to testify, see Brooks v. Tennessee, 406 U. S. 605, 611-612 (1972), the criminal defendant is by far the most likely witness to tailor testimony. When the district attorney informed the jury of defendant's opportunity to tailor his testimony, she simply provided the jury with the wisdom of the law's centuries of experience.

The Second Circuit's contention that the district attorney first should have developed some factual basis for the remark, see Agard v. Portuondo, 117 F. 3d 696, 711 (CA2 1997) (Oakes, J.), is without merit. Just as the district attorney may be free to make the common-sense argument that defendant has a motive to lie in order to escape incarceration, see ibid., she may also explain how defendant's story fits so neatly with so much of the victim's story, except for their accounts of the crimes. Common sense and experience show that the defendant had both the means and motive to fit his story to the victim's where it suited his interest.⁽⁵⁾

The closing argument must be analyzed in its context. See Donnelly v. De Christoforo, 416 U. S. 637, 645 (1974). This is a case involving extensive and detailed testimony by two sets of witnesses that differ only on a few critical facts. See Agard, supra, 117 F.3d, at 698. The remarks were not an attempt to imply guilt from defendant's mere presence at trial, see id., at 709, but an attempt to educate the jury about the credibility of defendant's agreement with the complaining witnesses on so many details. See People v. Buckey, 378 N. W. 2d 432, 438 (Mich. 1985) ("[a]ny resulting inference was not directly of guilt, but rather that defendants had the opportunity to conform their testimony because they heard other witnesses testify"). This Court does not lightly infer that the prosecutor meant the most unfair or damaging inference from a remark, or that the jury will even draw such a conclusion. See Donnelly, 416 U. S., at 647. The district attorney's remarks are most reasonably seen as an appropriate, common-sense comment on defendant's credibility as a witness, a position held by several states. See, e.g., Buckey, 378 N. W. 2d, at 438; State v. Grilli, 369 N. W. 2d 35, 37 (Minn. App. 1985); State v. Hoxsie, 677 P. 2d 620, 622 (N.M. 1984); Reed v. State, 633 S. W. 2d 664, 666 (Tex. App. 1982); State v. Howard, 323 N. W. 2d 872, 874 (S.D. 1982); State v. Robinson, 384 A. 2d 569, 570 (N.J. App. 1978) (per curiam).

Since the right to confrontation aims to ensure an accurate verdict, any burden arising from the remarks is incidental, as the remarks helped the jury assess defendant's credibility. Griffin, based in Fifth Amendment principles unconnected with the truthfulness of testimony, see supra, at 13, cannot make the journey to the truth-based Confrontation Clause.

IV. Attacking defendant's credibility as a witness does not violate the right to testify.

Rock, the genesis of this right, involved a total ban on hypnotically refreshed testimony. 483 U. S., at 45. Because defendant could not remember the details of the day she shot her husband, her counsel had her hypnotized in order to refresh her testimony. Id., at 46. The trial court's order limited her testimony "to 'matters remembered and stated to the examiner prior to being placed under hypnosis.' " Id., at 47.

Rock did not ban all limits on hypnotically refreshed testimony. It turned on the arbitrariness of the state rule. "Just as a State may not apply an arbitrary rule of competence to exclude a material defense witness from taking the stand, it also may not apply a rule of evidence that permits a witness to take the stand, but arbitrarily excludes material portions of his testimony." Id., at 55 (emphasis added).

Rock, by limiting its reach to arbitrary restrictions on defendant's testimony, recognized that "the right to present relevant testimony is not without limitation." Ibid. It noted that "[n]umerous state procedural and evidentiary rules control the presentation of evidence and do not offend the defendant's right to testify." Id., at 55, n. 11. Restrictions on defendant's testimony were permissible so long as they were not only "arbitrary or disproportionate to the purposes they are designed to serve." Id., at 56.

The Arkansas rule virtually prevented defendant from testifying to the key events surrounding the shooting, despite the fact that her story was corroborated by other witnesses. Id., at 57. The Court also felt that in some individual cases, hypnotically refreshed testimony might be reliable if proper procedural safeguards were in place. See id., at 60-61. Arkansas' per se exclusion was thus arbitrary and disproportionate. See id., at 61.

The closing argument in the present case is far removed from the arbitrary, near-total exclusion struck down in Rock. The greatest difference is, of course, that the district attorney's attack on defendant's credibility did not prevent him from testifying. Although he could not predict the content of his opponent's closing argument before choosing to testify, defendant was on notice that his credibility could and probably would be attacked. "[I]mpeachment follows the defendant's own decision to cast aside his cloak of silence and advances the truth-finding function of the criminal trial." Jenkins v. Anderson, 447 U. S. 231, 238 (1980). Once defendant takes the stand, he must be treated like any other witness. Raffel v. United States, 271 U. S. 494, 497 (1926); see also Grunewald v. United States, 353 U. S. 391, 420 (1957). Defendant can even expect to be impeached with evidence that the Constitution forbids the state from using in its case in chief. Statements taken contrary to the rule of Miranda v. Arizona, 384 U. S. 436 (1966) can be used to impeach defendant, Harris v. New York, 401 U. S. 222, 226 (1971), as can evidence taken in violation of the Fourth Amendment. Walder v. United States, 347 U. S. 62, 65 (1954). Although such evidence is inadmissible in the state's case in chief, this Court understands that the Constitution does not grant defendant a license to commit perjury. See Harris, 401 U. S., at 226. Even if testifying carries the serious risk of cross-examination and impeachment, an enlightened criminal justice system can require defendant to make this choice. See Brooks v. Tennessee, 406 U. S. 605, 609 (1972).

When assessing whether a constitutional right has been unduly burdened "it also is appropriate to consider the legitimacy of the challenged governmental practice." Jenkins, supra, 447 U. S., at 238. The People's closing argument pointed out to the jury the problems associated with the constitutionally compelled decision to not sequester defendant. See Part III B, supra. It did not infer guilt from his presence, but simply gave the jury an accurate assessment of defendant's credibility, which serves the very important interest of helping the jury reach an accurate verdict. See ibid.

In Jenkins, this Court upheld impeaching defendant with his pre-arrest silence. 447 U. S., at 238-239. Griffin did not apply because, unlike Griffin, defendant chose to testify. Griffin is even further removed from the present case. In Jenkins, defendant's silence was used against him. Here, the Second Circuit extended Griffin to an entirely different right, the right to testify, in a case where defendant was allowed to give a full, detailed rendition of his side of the case. A handful of accurate comments concerning defendant's credibility did not make this testimony vanish. It only placed the testimony in its proper context. The right to testify is not infringed when defendant " 'must comply with established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence.' " Rock, supra, 483 U. S., at 56, n. 11 (quoting Chambers v. Mississippi, 410 U. S. 284, 302 (1973)). Fair commentary on the evidence satisfies Rock's standard.

Ultimately, the district attorney's legitimate commentary on the risks associated with defendant's testimony did not burden the right to testify because it was his decision to testify. In United States v. Dunnigan, supra, 507 U. S., at 96, this Court held that a sentence enhancement for defendant's perjury as a witness at her own trial did not impermissibly burden her right to testify. Making her testimony potentially riskier was of no constitutional significance. "Our authorities do not impose a categorical ban on every governmental action affecting the strategic decisions of an accused, including decisions whether or not to exercise constitutional rights." Ibid. Defendant has made his choice, he must now be left to live with it.

CONCLUSION

June, 1999

Respectfully submitted,

Charles L. Hobson

*Attorney of Record  

Footnote 3. This stands in sharp contrast to the immutable Fifth Amendment self-incrimination privilege. No policy justifies compelled self-incrimination. The government thus cannot use the threat of contempt to force out self-incriminating testimony without first granting immunity to the witness. See Kastigar v. United States, 406 U. S. 441, 453 (1972). Such evidence is inadmissible even when the integrity of the fact-finding process is threatened; compelled statements are inadmissible at trial to impeach defendant's contrary testimony. Mincey v. Arizona, 437 U. S. 385, 398 (1978). Under the Fifth Amendment, the only issue is whether the privilege applies, once there is compelled self-incrimination no policy overrides its exclusionary rule.

Footnote 4. The burden on defendant's right to testify is addressed in Part IV, infra.

Footnote 5. Thus, the district attorney also could have noted the even more important point that defendant could tailor his testimony to that of his supporting witness, his friend Kiah.

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