William & Mary Law Review


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.

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