The unrecognized right of criminal defendants to admit their own pretrial statements.

• Author: Saltzburg, Stephen A.

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. The Court's rationale, fairly applied, should allow a defendant, attacked with an Agard argument, to introduce his own pretrial hearsay statements that are consistent with his trial testimony. The Court allowed the prosecutor to ask the jury to infer that the defendant had altered his own version of events to accord with other witness testimony at trial. It stands to reason that the defendant should be allowed to rebut this inference by introducing statements he made before trial that are consistent with his trial testimony. (5)

This Article discusses the opportunities for criminal defendants presented by the Court's opinion in Agard. Part I reviews the factual background of Agard and the rationale of the Supreme Court's decision. Once it is clear how the Supreme Court views the normal reactions of juries in criminal cases, the potential significance of the Court's decision for defendants is evident. Part II argues for admission of a particular type of statement that a defendant could make pretrial and then offer at trial to blunt the impact of the adverse inference raised by the prosecutor in Agard. Part III considers some procedural implications of admitting defendants' pretrial statements in response to the prosecution's Agard argument. Part IV discusses the potential effect of admission on defense strategy, and on the scope and timing of pretrial discovery. Part V sets forth some trial examples that may arise in light of Agard.

1. PORTUONDO V. AGARD: FACTUAL BACKGROUND AND SUPREME COURT DECISION

   1. Factual Background

      Ray Agard met Nessa Winder and Breda Keegan on Friday, April 27, 1990, at a bar and night club in lower Manhattan. (6) Both women were then twenty-three years old. (7) After socializing for some time, Agard invited Winder back to his Queens apartment. (8) She accepted, and a consensual sexual relationship between Agard and Winder began early the next morning. (9) The extent, but not the existence, of that relationship was contested at trial. (10)

      Agard, Winder, and Keegan reconvened the following weekend at the same bar and night club. (11) They were joined later that night by two of Agard's friends--Freddy and Kiah. (12) The group drank and talked, and there was some use of cocaine, including use by Winder. (13) Sometime between 4:00 and 4:30 a.m., at Agard's suggestion, they returned to his apartment. (14) Kiah and Freddy left to buy beer, while Agard, Keegan, and Winder retired to Agard's bedroom. (15)

      At trial, these facts were largely, though not entirely, uncontested. What occurred over the course of approximately the next eight hours, however, was substantially in dispute. According to Agard, upon returning to the apartment, Keegan became "loud" and "agitated" about her desire to go home. (16) He eventually escorted her out to Kiah's car, returned, and fell asleep next to Winder. (17) Agard and Winder awoke several hours later and had consensual vaginal intercourse before falling back to sleep and reawakening around 1:00 p.m. (18) At that time, according to Agard, Winder was upset--her boyfriend was arriving from England and would be furious if he discovered the relationship. (19) Agard attempted to calm her down and an altercation ensued, during which she scratched his face and he reflexively pushed her away. (20) Agard then called a cab, gave Winder $25, and sent her on her way. (21)

      Keegan and Winder told a different story. Keegan testified that Agard responded to her requests to leave his apartment by pressing a loaded gun against her head. (22) Agard assertedly warned Keegan to be quiet and continued to threaten her as he vacillated between ordering her out and demanding that she stay. (23) Agard eventually allowed Keegan to leave with Kiah. (24)

      Winder testified that she awoke at 9:30 a.m. on Sunday, May 6, wearing only her "vest" and without any recollection of the previous night's events. (25) According to Winder, Agard expressed an interest in sexual intercourse. (26) She declined, however, indicating that she was expecting her boyfriend from England. (27) Agard became angry, approached her from the back and slapped her in the face. (28) He continued to physically attack her before forcing her, at gunpoint, to engage in oral sodomy. (29) She screamed and struggled, but eventually submitted--in the face of death threats--to repeated acts of sodomy and rape. (30) Finally, when for the second time Agard's landlady phoned the apartment, Winder had an opportunity to dress. (31) Agard then called a taxi to take her back to Brooklyn. (32) He escorted her downstairs, warning, "[D]on't dare call the police." (33) Because Winder was short on money, the cab driver dropped her off down the street from Agard's apartment where she was eventually able to phone Keegan. (34) Winder hid until Keegan came for her, and the two women went to the police station. (35) Winder was examined later that day by Doctor Ardeshir Karimi at Elmhurst Hospital. (36) Dr. Karimi did not see signs of abnormality or trauma in Winder's vagina or anus. (37)

      On Monday, Winder and Keegan found the following message on their apartment's 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." (38) Both women identified Agard's voice. (39) The following day, a detective executed a search warrant at Agard's home and recovered a .45 caliber automatic handgun and two magazines containing shells. (40) Agard was arrested and charged with nineteen sodomy and sexual assault counts and three unlawful firearms counts. (41)

      Agard's story was largely consistent with the complainants' account about the first weekend after they met. He contended, however, that he had consensual anal intercourse with Winder on their first night together, as well as consensual intercourse on Saturday night. (42) Agard also testified...