CITES BY TOPIC:  silence

Silence as a Weapon and a Defense in Legal Discovery, Form #05.021

Federal Rule of Civil Procedure 8(b)(6): General Rules of Pleading

Rule 8. General Rules of Pleading

(b) Defenses; Admissions and Denials.

(6) Effect of Failing to Deny.

An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.

PDF Padelford, Fay & Co. v. Mayor and Aldermen of City of Savannah, 14 Ga. 438, 1854 WL 1492 (Ga. 1854.)

3. Supposing this not to be a tax for inspection purposes, has Congress consented to its being laid? It is certain that Congress has not expressly consented. But is express consent necessary? There is nothing in the Constitution which says so. There is nothing in the practice of men, or in the Municipal Law of men, or in the practice of nations, or the Law of nations that says so. Silence gives consent, is the rule of business life. A tender of bank bills is as good as one of coin, unless the bills are objected to. To stand by, in silence, and see another sell your property, binds you. These are mere instances of the use of the maxim in the Municipal Law. In the Law of Nations, it is equally potent. Silent acquiescence in the breach of a treaty binds a Nation. ( Vattel, ch. 16, sec. 199, book 1. See book 2, sec. 142, et seq. as to usucaption and prescription, and sec. 208 as to ratification.

*54 Express consent, then, not being necessary, is there any thing from which consent may be implied? There is-length of time. The Ordinance was passed the 24th of January, 1842, and has been in operation ever since. If Congress had been opposed to the Ordinance, it had but to speak, to be obeyed. It spoke not-it has never spoken: therefore, it has not been opposed to the Ordinance, but has been consenting to it.

[15.] 4. Say, however, that Congress has not consented to the Ordinance, then the most that can be maintained is, that the Ordinance stands subject to “the revision and control of Congress.” It stands a Law-a something susceptible of revision and control-not a something unsusceptible of revision and control as a void thing would be.

5. The question, as to ‘net produce’, cannot arise in the case in which Congress consents, or that in which she refuses to consent to the tax. There cannot be such a thing as ‘net produce’ in either of those cases; but only in the case of a tax for inspection purposes.

[16.] But let it be granted that the ordinance is void, does it follow that the decision of the Court below ought to be reversed? By no means. If the Law is void, and yet is enforced, who is injured by it? The seller of the import? Not at all. He is paid the tax by the purchaser from him before he pays it to the City. The tax is ultimately paid by the consumer of the article. The price or sale of which is taxed. The merchant puts the amount of the tax, as he does every other item of the cost of the goods, in the price which he fixes upon them-and when he sells, he gets from the purchaser that amount with the rest. If the tax injures any private person at all, therefore, that person is the consumer of the taxed article, and not the seller of it. To apply this more directly to the case. Padelford, Fay & Co. sold imports, and got the money for them. These imports had a tax on them. The amount of that entered into the price at which they sold the imports. Therefore, when they sold them at that price, they received the amount of this tax. They have it in hand. The City wants to get it out of their hands. They object, and insist upon keeping it, saying the Law under which it is claimed is void. Can this objection be allowed to be in their mouth? The consumer is the injured man; and he, by buying the taxed article and paying the tax included in the price, waives his objection to the tax. He is willing, for his money thus paid, to go to the City. In fact, he pays it for the use of the City. He might give it to the City, if he choose to do so; and if he did and should deliver it to Padelford, Fay & Co. to deliver to the City, would they be allowed to retain it? Certainly not. Neither should they be allowed to retain this tax, so paid them by the consumer, for the use of the City. It is a universal maxim, that Quilibet potest renunciare juri pro se introducto. The consumer, therefore, can waive his right to object to this ordinance, on the score of its being void; and he does this when he pays the tax it imposes on him. It is time enough to hold a Law, made under the authority of the State, to be a violation of the Constitution, when it is complained of by somebody that it injures. It is too soon to do this, when the complaint is made by one that it does not injure, and one, who, if the complaint be allowed, will be enabled to keep what, in justice and equity, he has no right to.

*55 But, indeed, no private person has a right to complain, by suit in Court, on the ground of a breach of the Constitution. The Constitution, it is true, is a compact, but he is not a party to it. The States are the parties to it. And they may complain. If they do, they are entitled to redress. Or they may waive the right to complain. If they do, the right stands waived. Could not the States, in their sovereign capacities, or Congress (if it has the power) as their agent, forgive such a breach of the Constitution, on the part of a State, as that of imposing a tax on imports, or accept reparation for it? In case this were done, what would become of the claims of private persons, for damages for such breach? To let such claims be set up against the forgiven party, would be to do away with the forgiveness. No, if there existed such claimants, they would have to appeal, each to his own sovereign for redress. It was that sovereign's business to get enough from the offending sovereign, to cover all private losses of his own citizens-and if he did not get enough to do that, those citizens must look to him, alone for indemnity.

And this brings to my general conclusion, which is, that the judgment of the Court below, ought to be affirmed.

[Padelford, Fay & Co. v. Mayor and Aldermen of City of Savannah, 14 Ga. 438, 1854 WL 1492 (Ga. 1854.)]

Dunahay v. Struzik, 96 Ariz. 246, 393 P.2d 930 (Ariz. 1964)

Appellant's failure to disclose that she was being sued by Overfield did not constitute fraud. While fraud may be committed by the failure to speak, a duty to speak must be imposed. Batty v. Arizona State Dental Board, 57 Ariz. 239, 112 P.2d 870. We hold there is no duty imposed upon one who is engaging in ordinary business transactions to advise those dealing with him that he is suing or being sued on matters arising out of other business dealings. There is no suggestion arising out of the evidence in this case that appellant knew Overfield was preparing to garnish the Parkers. Whether such facts, if established, would constitute actionable fraud is not an issue here and hence we do not determine whether this would be sufficient to place one in appellant's position under an obligation to speak.

[Dunahay v. Struzik, 96 Ariz. 246, 393 P.2d 930 (Ariz. 1964)]

Batty v. Arizona State Dental Bd., 57 Ariz. 239, 112 P.2d 870 (Ariz. 1941)

When a patient employs a physician he has the right to assume the latter will advise him properly in all matters pertaining to his ailments, and this certainly includes advice as to who are properly qualified to assist in his treatment. Fraud may be committed by a failure to speak, when the duty of speaking is imposed, as much as by speaking falsely. Cartwright v. United States Bank & Trust Co., 23 N.M. 82, 167 P. 436; *255 Bussian v. Milwaukee, etc., R. Co., 56 Wis. 325, 14 N.W. 452; Dent v. Bennett, 41 Eng. Reprint, 105.

We think a physician who knows that a patient of his is about to have surgical or medical work done by one who has no legal right to do it fails in his duty if he does not advise the patient of the situation. It has been held that when a physician takes a non-professional man with him to aid in a confinement case, where there is no emergency, both are liable in damages to the plaintiff for the failure to disclose such non-professional character. DeMay v. Roberts, 46 Mich. 160, 9 N.W. 146, 41 Am.Rep. 154.

[Batty v. Arizona State Dental Bd., 57 Ariz. 239, 112 P.2d 870 (Ariz. 1941)]

State v. Coddington, 135 Ariz. 480, 662 P.2d 155 (Ariz.App.,1983)

A misrepresentation may consist of the concealment of what is true as well as the assertion of what is false. Nairn v. Ewalt, 51 Kan. 355, 32 P. 1110 (1893); U.S. v. Sterling Salt Co., 200 F. 593, 597 (1912). Where failure to disclose a material fact is calculated to induce a false belief, the distinction between concealment and affirmative misrepresentation is tenuous. Schock v. Jacka, 105 Ariz. 131, 460 P.2d 185 (1969).

When one conveys a false impression by the disclosure of some facts and the concealment of others, such concealment is in effect a false representation that what is disclosed is the whole truth. Equitable Life Ins. Co. of Iowa v. Halsey, Stuart & Co., 312 U.S. 410, 61 S.Ct. 623, 85 L.Ed. 920 (1941); *482 **157 Dennis v. Thomson, 43 S.W.2d 18, 240 Ky. 727 (1931); 37 C.J.S. Fraud, § 16, p. 247; Restatement (Second) of Torts, § 529.

[State v. Coddington, 135 Ariz. 480, 662 P.2d 155 (Ariz.App.,1983.)]

Leigh v. Loyd, 74 Ariz. 84, 244 P.2d 356 (Ariz. 1952)

Appellee contends that fraud was practiced upon her by the appellant in that she had engaged him as an agent to accomplish the sale of her real estate and he, in breach of the confidential relationship, failed to make a full and frank disclosure of the true facts. It is well settled that a confidential relation exists between a real estate agent and his principal. Haymes v. Rogers, 70 Ariz. 257, 219 P.2d 339, 17 A.L.R.2d 896. The confidential relationship imposed a duty on the appellant to disclose the true facts. A real estate agent owes the utmost good faith and loyalty to his principal. Haymes v. Rogers, supra. Suppression of a material fact which a party is bound in good faith to disclose is equivalent to a false representation. 37 C.J.S., Fraud, § 16, p. 244; Morrison v. Acton, 68 Ariz. 27, 198 P.2d 590.

The appellant in this case had prepared the documents in his office without the direction or even the knowledge of appellee, his principal. Appellant well knew the nature and context of the instruments in question before he presented them to his client. His obligation to communicate these facts to the appellee arises by reason of the confidential relations existing between them. The failure to disclose all facts was false and deceptive and placed him in a position where his silence conveyed a false impression. Although appellee by reading the papers might have ascertained their true nature, her failure to do so under the circumstances may not be interpreted as a condonement of appellant's fraud. The rule is stated in 37 C.J.S., Fraud, § 35, p. 282:

‘Ordinarily a confidential relationship need not be shown to justify plaintiff in believing defendant's representation and in relying thereon. However, the general rule requiring the representee to exercise due diligence, * * *, and to avail himself of means of knowledge within reach, * * *, does not apply if a relation of trust or **359 confidence exists between the parties, so that one of them places peculiar reliance in the trustworthiness of the other, and in such cases the latter is under a duty to make a full and truthful disclosure of all material facts and is liable for either misrepresentation or concealment. * * *’ As there is reasonable evidence to sustain the judgment of the lower court, the judgment is affirmed.

Judgment affirmed.

[Leigh v. Loyd, 74 Ariz. 84, 244 P.2d 356 (Ariz. 1952)]

Morrison v. Acton, 68 Ariz. 27, 198 P.2d 590 (Ariz. 1948)

Constructive fraud arises out of a fiduciary or confidential relationship. In re McDonnell's Estate, supra. For other Arizona cases on this point see Harrison v. Roark, 31 Ariz. 73, 250 P. 367; Tom Reed G. M. Co. v. Mining Co., 39 Ariz. 533, 8 P.2d 449. Also see 37 C.J.S., Fraud, § 2(c). Such non-action and non-disclosure as was present here was a clear breach of the close confidential relationship which of necessity exists between dentist and patient. We quote from Acton v. Morrison, supra [62 Ariz. 139, 155 P.2d 784]:

‘The relation existing between the plaintiff and defendant was confidential, calling for frank and truthful information from the dentist to his patient, and he, in keeping from his patient knowledge of the true condition of his jaw and teeth, violated a very sacred duty he owed him.’

The text statements in 37 C.J.S., Fraud, § 16d and 35a are also helpful in this regard. Fraud and deceit may arise from silence where there is a duty to speak the truth, as well as from the speaking of an untruth. We hold, then, that there was sufficient evidence to sustain the jury's implied finding of fraud.

[Morrison v. Acton, 68 Ariz. 27, 198 P.2d 590 (Ariz. 1948)]

Regan v. First Nat. Bank, 55 Ariz. 320, 101 P.2d 214 (Ariz. 1940)

As a general principle of law when one under a duty to disclose facts to another fails to do so, and the other is injured thereby, an action in tort lies against the party whose failure to perform his duty caused the injury. There is no doubt that it was the duty of defendant to make a full and complete disclosure of the true facts in regard to its financial relations with the defendants when it was served with the writ in July, 1934. If, as alleged by plaintiff in the present case, it failed to do so, and plaintiff, relying upon those representations, was injured thereby, an action in tort for damages would lie against it. Moore v. Meyers, 31 Ariz. 347, 253 P. 626.

We think the allegations of the complaint sufficiently set up facts which, if true, show the duty of defendant, the failure to perform such duty, and the damage thereby to plaintiff. Were this all that was disclosed by the record, we would be compelled to hold that the court improperly sustained the demurrer, and that defendant should have been required to answer. But it is claimed by defendant, and the record bears out its contention, that when the third garnishment was filed in 1937, plaintiff tendered an issue on it, showing clearly that at that time he had knowledge of the very facts upon which his present complaint is based, and *327 that he desired to have them litigated in the tender of issue, and that they were so litigated and judgment went against him on the issue.

[Regan v. First Nat. Bank, 55 Ariz. 320, 101 P.2d 214 (Ariz. 1940)]

Stewart v. Phoenix Nat. Bank, 49 Ariz. 34, 64 P.2d 101 (Ariz. 1937)

It is the general rule of law that, where a relation of trust or confidence exists between two parties so that one of them places peculiar reliance in the trustworthiness of another, the latter is under a duty to make a full and truthful disclosure of all material facts, and is liable for misrepresentation or concealment, and that in such cases redress may be had for representations as to future conduct, and not merely as to past facts. 26 C.J. 1158, and cases cited. In other words, to use the homely western phrase, the party in whom confidence is thus reposed must ‘lay his cards on the table.’ The doctrine of confidential relations has been applied to different classes or relationship, husband and wife, parent and child, guardian and ward, attorney and client, partnership, joint adventurers, and perhaps many others, but, so far as we are aware, the question of whether the relation of a bank to its clients falls within the category has never been considered by the courts. It is, of court, true that the relation between a bank and a simple depositor therein is that of debtor and creditor, and ordinarily no confidential relation arises out of such circumstances, but in the present case the claim is that the relation between plaintiff and defendant was far beyond that of a mere debtor and creditor. It is alleged, and for the purpose of testing the sufficiency of the complaint we must assume it to be true, that for some twenty-three years the plaintiff was not only a customer of the bank, but its officers and directors had been his financial advisers; that he had been told repeatedly of their friendship for him and had *45 relied upon their advice; and that by reason of such relations he believed they would take no financial advantage of him.

[Stewart v. Phoenix Nat. Bank, 49 Ariz. 34, 64 P.2d 101 (Ariz. 1937)]

Universal Inv. Co. v. Sahara Motor Inn, Inc., 127 Ariz. 213, 619 P.2d 485 (Ariz.App., 1980.)

Fraud will not be presumed and must be proved by clear and convincing evidence. Gardner v. Royal Development Co., 11 Ariz.App. 447, 465 P.2d 386 (1970). Concealing a material fact when there is a duty to disclose may be actionable fraud. National Housing Industries, Inc. v. E. L. Jones Development Co., 118 Ariz. 374, 576 P.2d 1374 (App.1978). The evidence supports findings that the seller failed to disclose violations of the city code in the electrical system which were known to it prior to closing and that violations were material under the circumstances, but the questions remain whether the seller had a legal duty to disclose the violations to the buyer or the *215 **487 buyer had a right to rely on the seller's silence.

Though generally no duty to disclose exists between a buyer and seller, certain circumstances may give rise to such a duty. If there is a confidential relationship between the parties and one reasonably relies on the trustworthiness of the other, the duty arises. Stewart v. Phoenix National Bank, 49 Ariz. 34, 64 P.2d 101 (1937). This was an arm's length transaction. Consequently, no special relationship existed that would give rise to a duty to disclose. Klinger v. Hummel, 11 Ariz.App. 356, 464 P.2d 676 (1970).

[Universal Inv. Co. v. Sahara Motor Inn, Inc., 127 Ariz. 213, 619 P.2d 485 (Ariz.App., 1980.)]

Portuondo v. Agard, 529 U.S. 61, 120 S.Ct. 1119 (2000)

Respondent's argument boils down to a request that we extend to comments of the type the prosecutor made here the rationale of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), which involved comments upon a defendant's refusal to testify. In that case, the trial court instructed the jury that it was free to take the defendant's failure to deny or explain facts within his knowledge as tending to indicate the truth of the prosecution's case. This Court held that such a comment, by “solemniz[ing] the silence of the accused into evidence against him,” unconstitutionally “cuts down on the privilege [against self-incrimination] by making its assertion costly.” Id., at 614, 85 S.Ct. 1229.

[1]  We decline to extend Griffin to the present context. As an initial matter, respondent's claims have no historical foundation, neither in 1791, when the Bill of Rights was adopted, nor in 1868 when, according to our jurisprudence, the Fourteenth Amendment extended the strictures of the Fifth and Sixth Amendments to the States. The process by which *66 criminal defendants were brought to justice in 1791 largely obviated the need for comments of the type the prosecutor made here. Defendants routinely were asked (and agreed) to provide a pretrial statement to a justice of the peace detailing the events in dispute. See Moglen, The Privilege in British North America: The Colonial Period to the Fifth Amendment, in The Privilege Against Self-Incrimination 109, 112, 114 (R. Helmholz et al. eds.1997). If their story at trial-where they typically spoke and conducted their defense personally, without counsel, see J. Goebel & T. Naughton, Law Enforcement in Colonial New York: A Study in Criminal Procedure (1664-1776), p. 574 (1944); A. Scott, Criminal Law in Colonial Virginia 79 (1930)-differed from their pretrial statement, the contradiction could be noted. See Levy, Origins of the Fifth Amendment and Its Critics, 19 Cardozo L.Rev. 821, 843 (1997). Moreover, what they said at trial was not considered to be evidence, since they were disqualified from testifying under oath. See 2 J. Wigmore, Evidence § 579 (3d ed.1940).

The pretrial statement did not begin to fall into disuse until the 1830's, see Alschuler, A Peculiar Privilege in Historical Perspective, in The Privilege Against Self-Incrimination, supra, at 198, and the first State to make defendants competent witnesses was Maine, in 1864, see 2 Wigmore, supra, § 579, at 701. In response to these developments, some States attempted to limit a defendant's opportunity to tailor his sworn testimony by requiring him to testify prior to his own witnesses. See 3 J. Wigmore, Evidence §§ 1841, 1869 (1904); Ky. Stat., ch. 45, § 1646 (1899); Tenn.Code Ann., ch. 4, § 5601 (1896). Although the majority of States did not impose such a restriction, there is no evidence to suggest they also took the affirmative step of forbidding comment upon the defendant's opportunity to tailor his testimony. The dissent faults us for “call[ing] up no instance of an 18th- or 19th-century prosecutor's urging that a defendant's presence at trial facilitated tailored testimony.” Post, *67 at 1133 (opinion of GINSBURG, J.). We think the burden is rather upon respondent and the dissent, who assert the unconstitutionality of the practice, to come **1124 up with a case in which such urging was held improper. They cannot even produce one in which the practice was so much as challenged until after our decision in Griffin. See, e.g., State v. Cassidy, 236 Conn. 112, 126-127, 672 A.2d 899, 907-908 (1996); People v. Buckey, 424 Mich. 1, 8-15, 378 N.W.2d 432, 436-439 (1985); Jenkins v. United States, 374 A.2d 581, 583-584 (D.C.1977). This absence cuts in favor of respondent (as the dissent asserts) only if it is possible to believe that after reading Griffin prosecutors suddenly realized that commenting on a testifying defendant's unique ability to hear prior testimony was a good idea. Evidently, prosecutors were making these comments all along without objection; Griffin simply sparked the notion that such commentary might be problematic.

[2]  Lacking any historical support for the constitutional rights that he asserts, respondent must rely entirely upon our opinion in Griffin. That case is a poor analogue, however, for several reasons. What we prohibited the prosecutor from urging the jury to do in Griffin was something the jury is not permitted to do. The defendant's right to hold the prosecution to proving its case without his assistance is not to be impaired by the jury's counting the defendant's silence at trial against him-and upon request the court must instruct the jury to that effect. See Carter v. Kentucky, 450 U.S. 288, 101 S.Ct. 1112, 67 L.Ed.2d 241 (1981). It is reasonable enough to expect a jury to comply with that instruction since, as we observed in Griffin, the inference of guilt from silence is not always “natural or irresistible.” 380 U.S., at 615, 85 S.Ct. 1229. A defendant might refuse to testify simply out of fear that he will be made to look bad by clever counsel, or fear “ ‘that his prior convictions will prejudice the jury.’ ” Ibid. (quoting People v. Modesto, 62 Cal.2d 436, 453, 42 Cal.Rptr. 417, 398 P.2d 753, 763 (1965) (en banc)). By contrast, it is natural and irresistible for a jury, in evaluating *68 the relative credibility of a defendant who testifies last, to have in mind and weigh in the balance the fact that he heard the testimony of all those who preceded him. It is one thing (as Griffin requires) for the jury to evaluate all the other evidence in the case without giving any effect to the defendant's refusal to testify; it is something else (and quite impossible) for the jury to evaluate the credibility of the defendant's testimony while blotting out from its mind the fact that before giving the testimony the defendant had been sitting there listening to the other witnesses. Thus, the principle respondent asks us to adopt here differs from what we adopted in Griffin in one or the other of the following respects: It either prohibits inviting the jury to do what the jury is perfectly entitled to do; or it requires the jury to do what is practically impossible.FN1

 

FN1. The dissent seeks to place us in the position of defending the proposition that inferences that the jury is free to make are inferences that the prosecutor must be free to invite. Post, at 1134-1135. Of course we say no such thing. We simply say (in the sentence to which this note is appended) that forbidding invitation of a permissible inference is one of two alternative respects in which this case is substantially different from respondent's sole source of support, Griffin. Similarly, the dissent seeks to place us in the position of defending the proposition that it is more natural to infer tailoring from presence than to infer guilt from silence. Post, at 1133-1134. The quite different point we do make is that inferring opportunity to tailor from presence is inevitable, and prohibiting that inference (while simultaneously asking the jury to evaluate the veracity of the defendant's testimony) is demanding the impossible-producing the other alternative respect in which this case differs from Griffin.

The dissent seeks to rebut this point by asserting that in the present case the prosecutorial comments went beyond pointing out the opportunity to tailor and actually made an accusation of tailoring. It would be worth inquiring into that subtle distinction if the dissent proposed to permit the former while forbidding the latter. It does not, of course; nor, as far as we know, does any other authority. Drawing the line between pointing out the availability of the inference and inviting the inference would be neither useful nor practicable. Thus, under the second alternative described above, the jury must be prohibited from taking into account the opportunity of tailoring.

**1125 [3]  *69 Second, Griffin prohibited comments that suggest a defendant's silence is “evidence of guilt.” 380 U.S., at 615, 85 S.Ct. 1229 (emphasis added); see also United States v. Robinson, 485 U.S. 25, 32, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988) ( “ ‘Griffin prohibits the judge and prosecutor from suggesting to the jury that it may treat the defendant's silence as substantive evidence of guilt’ ”) (quoting Baxter v. Palmigiano, 425 U.S. 308, 319, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976))). The prosecutor's comments in this case, by contrast, concerned respondent's credibility as a witness, and were therefore in accord with our longstanding rule that when a defendant takes the stand, “his credibility may be impeached and his testimony assailed like that of any other witness.” Brown v. United States, 356 U.S. 148, 154, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958). “[W]hen [a defendant] assumes the role of a witness, the rules that generally apply to other witnesses-rules that serve the truth-seeking function of the trial-are generally applicable to him as well.” Perry v. Leeke, 488 U.S. 272, 282, 109 S.Ct. 594, 102 L.Ed.2d 624 (1989). See also Reagan v. United States, 157 U.S. 301, 305, 15 S.Ct. 610, 39 L.Ed. 709 (1895).

Respondent points to our opinion in Geders v. United States, 425 U.S. 80, 87-91, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), which held that the defendant must be treated differently from other witnesses insofar as sequestration orders are concerned, since sequestration for an extended period of time denies the Sixth Amendment right to counsel. With respect to issues of credibility, however, no such special treatment has been accorded. Jenkins v. Anderson, 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980), illustrates the point. There the prosecutor in a first-degree murder trial, during cross-examination and again in closing argument, attempted to impeach the defendant's claim of self-defense by suggesting that he would not have waited two weeks to report the killing if that was what had occurred. In an argument strikingly similar to the one presented here, the defendant in Jenkins claimed that commenting on his prearrest silence violated his Fifth Amendment privilege against self-incrimination because “a person facing arrest will not remain silent if his failure to speak later can be used to impeach *70 him.” Id., at 236, 100 S.Ct. 2124. The Court noted that it was not clear whether the Fifth Amendment protects prearrest silence, id., at 236, n. 2, 100 S.Ct. 2124, but held that, assuming it does, the prosecutor's comments were constitutionally permissible. “[T]he Constitution does not forbid ‘every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights.’ ” Id., at 236, 100 S.Ct. 2124 (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 30, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973)). Once a defendant takes the stand, he is “ ‘subject to cross-examination impeaching his credibility just like any other witness.’ ” Jenkins, supra, at 235-236, 100 S.Ct. 2124 (quoting Grunewald v. United States, 353 U.S. 391, 420, 77 S.Ct. 963, 1 L.Ed.2d 931 (1957)).

Indeed, in Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972), the Court suggested that arguing credibility to the jury-which would include the prosecutor's comments here-is the preferred means of counteracting tailoring of the defendant's testimony. In that case, the Court found unconstitutional Tennessee's attempt to defeat tailoring by requiring defendants to testify at the outset of the defense or not at all. This requirement, it said, impermissibly burdened the defendant's right to testify because it forced him to decide whether to do so before he could determine that it was in his best interest. Id., at 610, 92 S.Ct. 1891. The Court expressed its awareness, **1126 however, of the danger that tailoring presented. The antidote, it said, was not Tennessee's heavy-handed rule, but the more nuanced “adversary system[, which] reposes judgment of the credibility of all witnesses in the jury.” Id., at 611, 92 S.Ct. 1891. The adversary system surely envisions-indeed, it requires-that the prosecutor be allowed to bring to the jury's attention the danger that the Court was aware of.

Respondent and the dissent also contend that the prosecutor's comments were impermissible because they were “generic” rather than based upon any specific indication of tailoring. Such comment, the dissent claims, is unconstitutional because it “does not serve to distinguish guilty defendants from innocent ones.” Post, at 1129. But this Court has *71 approved of such “generic” comment before. In Reagan, for example, the trial court instructed the jury that “[t]he deep personal interest which [the defendant] may have in the result of the suit should be considered ... in weighing his evidence and in determining how far or to what extent, if at all, it is worthy of credit.” 157 U.S., at 304, 15 S.Ct. 610. The instruction did not rely on any specific evidence of actual fabrication for its application; nor did it, directly at least, delineate the guilty and the innocent. Like the comments in this case, it simply set forth a consideration the jury was to have in mind when assessing the defendant's credibility, which, in turn, assisted it in determining the guilt of the defendant. We deemed that instruction perfectly proper. Thus, that the comments before us here did not, of their own force, demonstrate the guilt of the defendant, or even distinguish among defendants, does not render them infirm.FN2

FN2. The dissent's stern disapproval of generic comment (it “tarnishes the innocent no less than the guilty,” post, at 1129; it suffers from an “incapacity to serve the individualized truth-finding function of trials,” post, at 1131; so that “when a defendant's exercise of a constitutional fair trial right is ‘insolubly ambiguous' as between innocence and guilt, the prosecutor may not urge the jury to construe the bare invocation of the right against the defendant,” post, at 1130) hardly comports with its praising the Court of Appeals for its “carefully restrained and moderate position” in forbidding this monstrous practice only on summation and allowing it during the rest of the trial, ibid. The dissent would also allow a prosecutor to remark at any time-even at summation-on the convenient “fit” between specific elements of a defendant's testimony and the testimony of others. Ibid. It is only a “general accusation of tailoring” that is forbidden. Ibid. But if the dissent believes that comments which “invite the jury to convict on the basis of conduct as consistent with innocence as with guilt” should be out of bounds, ibid.-or at least should be out of bounds in summation-comments focusing on such “fit” must similarly be forbidden. As the dissent acknowledges, “fit” is as likely to result from the defendant's “sheer innocence” as from anything else. Post, at 1134.

Finally, the Second Circuit held, and the dissent contends, that the comments were impermissible here because they were made, not during cross-examination, but at summation, *72 leaving the defense no opportunity to reply. 117 F.3d, at 708, and n. 6. That this is not a constitutionally significant distinction is demonstrated by our decision in Reagan. There the challenged instruction came at the end of the case, after the defense had rested, just as the prosecutor's comments did here.FN3

FN3. The dissent maintains that Reagan v. United States, 157 U.S. 301, 15 S.Ct. 610, 39 L.Ed. 709 (1895), is inapposite to the question presented in this case because it considered the effect of an interested-witness instruction on a defendant's statutory right to testify, rather than on his constitutional right to testify. See id., at 304, 15 S.Ct. 610 (citing Act of Mar. 16, 1878, Ch. 37, 20 Stat. 30, as amended, 18 U.S.C. § 3481). That is a curious position for the dissent to take. Griffin-the case the dissent claims controls the outcome here-relied almost exclusively on the very statute at issue in Reagan in defining the contours of the Fifth Amendment right prohibiting comment on the failure to testify. After quoting the Court's description, in an earlier case, of the reasons for the statutory right, see Wilson v. United States, 149 U.S. 60, 13 S.Ct. 765, 37 L.Ed. 650 (1893), the Griffin Court said: “If the words ‘Fifth Amendment’ are substituted for ‘act’ and for ‘statute,’ the spirit of the Self-Incrimination Clause is reflected.” 380 U.S., at 613-614, 85 S.Ct. 1229. It is eminently reasonable to consider that a questionable manner of constitutional exegesis, see Mitchell v. United States, 526 U.S. 314, 336, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999) (SCALIA, J., dissenting); it is not reasonable to make Griffin the very centerpiece of one's case while simultaneously denying that the statute construed in Reagan (and Griffin ) has anything to do with the meaning of the Constitution. The interpretation of the statute in Reagan is in fact a much more plausible indication of constitutional understanding than the application of the statute in Griffin: The Constitution must have allowed what Reagan said the statute permitted, because otherwise the Court would have been interpreting the statute in a manner that rendered it void. Griffin, on the other hand, relied upon the much shakier proposition that a practice which the statute prohibited must be prohibited by the Constitution as well.

**1127 Our trial structure, which requires the defense to close before the prosecution, regularly forces the defense to predict what the prosecution will say. Indeed, defense counsel in this case explained to the jury that it was his job in “closing argument here to try and anticipate as best [he could] some of the arguments that the prosecution [would] be making.” App. 25-27. What Reagan permitted-a generic *73 interested-witness instruction, after the defense has closed-is in a long tradition that continues to the present day. See, e.g., United States v. Jones, 587 F.2d 802 (C.A.5 1979); United States v. Hill, 470 F.2d 361 (C.A.D.C.1972); 2 C. Wright, Federal Practice and Procedure § 501, and n. 1 (1982). Indeed, the instruction was given in this very case. See Tr. 834 (“A defendant is of course an interested witness since he is interested in the outcome of the trial. You may as jurors wish to keep such interest in mind in determining the credibility and weight to be given to the defendant's testimony”).FN4 There is absolutely nothing to support the dissent's contention that for purposes of determining the validity of generic attacks upon credibility “the distinction between cross-examination and summation is critical,” post, at 1135.

FN4. It is hard to understand how Justice STEVENS reconciles the unquestionable propriety of the standard interested-witness instruction with his conclusion that comment upon the opportunity to tailor, although it is constitutional, “demean[s] [the adversary] process” and “should be discouraged.” Post, at 1129 (opinion concurring in judgment). Our decision, in any event, is addressed to whether the comment is permissible as a constitutional matter, and not to whether it is always desirable as a matter of sound trial practice. The latter question, as well as the desirability of putting prosecutorial comment into proper perspective by judicial instruction, are best left to trial courts, and to the appellate courts which routinely review their work.

In sum, we see no reason to depart from the practice of treating testifying defendants the same as other witnesses. A witness's ability to hear prior testimony and to tailor his account accordingly, and the threat that ability presents to the integrity of the trial, are no different when it is the defendant doing the listening. Allowing comment upon the fact that a defendant's presence in the courtroom provides him a unique opportunity to tailor his testimony is appropriate-and indeed, given the inability to sequester the defendant, sometimes essential-to the central function of the trial, which is to discover the truth.

[Portuondo v. Agard, 529 U.S. 61, 120 S.Ct. 1119 (2000)]