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INTEREST OF AMICUS CURIAE

Although the Constitution grants many protections to criminal defendants, it does not insulate them from the consequences of their choices. When defendant chose to testify, he opened himself to attacks on his credibility, including the district attorney's commentary that he had the advantage of seeing every other witness's testimony. The Second Circuit's holding that the state cannot impose any "cost" on the exercise of constitutional rights improperly insulates defendant from the consequences of his actions by meddling with legitimate state practices. This is contrary to the interests CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

Defendant, his friend Freddy, B. K., and N. W. met again on Saturday, May 5, at the same club where they first met. See ibid. The group drank and talked for several hours. Some, including N. W., used cocaine. Ibid. N. W. testified that she got drunk and passed out, last remembering the arrival of defendant's friend Kiah and the group's decision to go to another club. B. K. testified that N. W., although drunk, was "walking and talking" at the time of her memory failure. Ibid. The group left in Kiah's car, where they eventually moved to another bar and continued drinking. During the trip N. W. was in defendant's lap, but was not affectionate, as she was sleeping. Ibid.

Between 4:00 and 4:30 a.m., they left the bar. Although B. K. wanted to return to her place with her roommate N. W., the group went to Agard's place at his suggestion. Ibid. Kiah and Freddy left for beer, while defendant let the two women in, where they then went to defendant's bedroom. N. W. immediately fell asleep on defendant's bed. After B. K. indicated that she wanted to call a cab, defendant responded that she should stay and have a beer, since he had his friends go to the trouble of getting some. He then became verbally abusive and threatening. Ibid. Eventually, he pulled a gun out of a drawer and placed it "against B. K.'s head, saying, 'I'm going to give you three seconds to shut up.' " Id., at 700. Defendant then put the gun away and continued to verbally abuse B. K. until his friends returned. Although reluctant to leave her roommate, B. K. decided to leave with Kiah. While leaving, she brushed by defendant, who grabbed her around the neck. B. K. screamed and defendant let go, "cursing her for getting him in trouble with his landlady." Ibid.

N. W. testified that she woke up at 9:30 a.m., wearing nothing but her vest. She could not remember how she got where she was, but she knew she needed to get home to meet her boyfriend coming from England. Ibid. She recalled "that at some point [defendant] had asked her for 'a fuck' and she said 'no.' " Ibid. When she tried to call a cab, defendant put the phone down cursing both her and B. K.. Ibid. When she started to get dressed defendant hit her and eventually threatened her with a gun to force her to commit oral sodomy. Ibid.

N. W. asked to be allowed to go to the bathroom, and defendant assented. Ibid. After first locking herself in the bathroom, she attempted to flee to Freddy's room, where she begged Freddy to help. She then brought Freddy with her into defendant's room. Defendant ordered Freddy out, and he complied. Ibid. N. W. screamed in the hopes of getting the landlord's attention. Defendant then punched her three times in the face. Id., at 700. Defendant next proceeded to commit several acts of rape, oral, and anal sodomy on N. W.. See id., at 700-701.

After defendant was through with her, he called a taxi to take her home. He escorted her downstairs, threatening her if she called the police. Id., at 701. Because she had no money, the cab dropped her off a short distance from defendant's place, where she managed to call B. K.. She hid until B. K. found her, and the two immediately went to the police station. Ibid. The medical exam showed no signs of abnormality in N. W.'s vagina or anus and only her vaginal sample was positive for spermatozoa. Ibid.

On the day after the rape, May 7, 1990, N. W. and B. K. found the following message on their answering machine:

"You will know who this message is for. After careful consideration of this entire situation, it was my fault. I was a golden asshole. The only thing I can do is say I'm sorry and that's it. I'll never bother you again. Live safely and peacefully. Goodbye." Ibid.

At trial, both B. K. and N. W. identified the voice as defendant's.

Defendant claimed that he and N. W. engaged in consensual anal intercourse with lubricants their first night together. Id., at 701. He asserted that on the second weekend N. W. was awake and amorous towards him during the drive to the second nightclub. He declared that while B. K. wanted to go home, N. W. had no reservations about going to his place. Ibid. Defendant and N. W. fell asleep next to each other on his bed at 6:00 a.m. When they awoke three hours later they engaged in consensual vaginal sex. He claimed they reawakened between noon and 1:00 p.m., with N. W. " 'upset,' and 'kind of hyper,' and concerned that her boyfriend was going to kill her." Ibid. When he tried to calm her she struck him and scratched the inside of his mouth. See id., at 701-702. He reflexively "used the palm of his open hand to push her away, 'mush[ing]' her in the eye." Id., at 702. He called a cab and gave her $25 for fare. His call the next day was to apologize for mushing her in the face. Ibid.

Kiah testified for the defense that N. W. hugged and kissed defendant during the drive to the second club and that she was conscious at the last bar, contrary to B. K.'s testimony. He also said that B. K. never informed him that defendant had threatened her with a gun. Ibid.

At the closing argument, the district attorney argued that defendant was " 'the one who had an answer for everything' " and that his story fit perfectly with the complaining witnesses except for "the denials of the crime." Id., at 707. She then noted that "unlike all the other witnesses . . . he [defendant] gets to sit here and listen to the testimony of all the other witnesses before he testifies." Ibid. Defendant was convicted on one count of anal sodomy, of felony assault with rape as the underlying felony, and three weapons counts. Id., at 702. The felony assault conviction was dismissed by the trial court as inconsistent with the rape acquittal. Ibid.

The state intermediate appellate court vacated one weapon count, while affirming the other convictions. People v. Agard, 606 N. Y. S. 2d 239, 240 (N.Y. App. Div. 1993). On March 21, 1996, the federal district court denied his habeas petition. Agard v. Portuondo, supra, 117 F. 3d, at 698. The Second Circuit reversed, id., at 715, finding that the district attorney's reference to defendant's observation of all other testimony violated his right to confrontation, id., at 709, to testify on his own behalf, id., at 712, and the due process right to a fair trial. Id., at 714.

SUMMARY OF ARGUMENT

Before determining whether Griffin may be extended to other constitutional rights, it is first necessary to understand its basis in the Fifth Amendment's self-incrimination privilege. Griffin, relying on past practice, notes that testifying poses a risk to the innocent defendant who has prior convictions, or who would be a poor witness. In situations where the Fifth Amendment is inapplicable, this Court accepts the relevance of inferring guilt from a failure to respond to an accusation. Because it is logical to infer guilt from a failure to testify, Griffin must be based on more than protecting innocents.

Griffin's Fifth Amendment rationale is found in the proscription against subjecting defendants to the "cruel trilemma" of contempt, perjury, or self-incrimination. The pressure from the inference of guilt is sufficiently close to contempt to make Griffin error a form of compelled self-incrimination. Griffin's rationale thus primarily protects the guilty, as innocent defendants are not confronted with any "trilemma," as they can honestly testify to their innocence.

Defendant's Sixth Amendment right to physical confrontation, like all other confrontation rights, is intended to assure an accurate verdict. Each component of the Confrontation Clause is meant to help defendant test the accuracy and credibility of the state's witnesses. This right to confrontation is interpreted with an eye towards the needs of the trial it governs, thus discouraging impractical literalism and retaining flexibility so long as there is substantial compliance with its truth-finding function.

Defendant received as much confrontation as the Constitution requires. The People's witnesses testified under oath, in the presence of defendant and the jury, and were subject to unencumbered cross-examination. The district attorney's comments that defendant's presence at trial allowed him to tailor his testimony to what he heard did not diminish these rights, because the closing argument advanced the interests protected by the Confrontation Clause.

Sequestering witnesses is an ancient and universal practice that is essential to an accurate verdict. Keeping witnesses from hearing each other's testimony helps expose inconsistencies and prevents falsehoods. It is considered, after cross-examination, to be one of the best methods for detecting untrue testimony.

Because the Confrontation Clause prevents defendant from being sequestered, the closing argument in the present case represents a reasonable compromise between sequestration and confrontation. The district attorney's remarks to the jury were accurate: witnesses do tailor their testimony to what they have heard, and criminal defendants have greater means and motive to tailor than any other witnesses. The extensive testimony that differed on a few key details reinforced this risk in the present case. Giving this information to the jury allowed it to judge defendant's credibility in its proper context while preserving his basic right to confrontation. Because Griffin is based on considerations other than accuracy of the verdict, it does not apply to this truth-finding closing argument that is consistent with the goals of the Confrontation Clause.

Defendant's right to testify was not violated by the closing argument. This right is limited to preventing rules that arbitrarily limit defendant's testimony in a manner disproportionate to their goals. Defendant was not kept from testifying. The fact that his choice to testify exposed him to attacks on his credibility does not violate this right. A defendant who testifies is treated like any other witness and is subject to vigorous attacks on his credibility. Because the Constitution is not a license to commit perjury, attacks on defendant's credibility are given more leeway. Thus illegally seized evidence and custodial statements taken without Miranda warnings can be used to attack a testifying defendant's credibility. The Constitution does not insulate defendant from the adverse consequences of his decision to exercise a constitutional right. The district attorney's accurate assessment of defendant's credibility therefore neither prevented nor burdened his right to testify.

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Footnote 1. Rule 37.6 Statement: This brief was written entirely by counsel for amicus, as listed on the cover, and not by counsel for any party. No outside contributions were made to the preparation or submission of this brief.

Both parties have given written consent to the filing of this brief.