dissenting:
In February 1991, Ray Agard sat in a Queens County courtroom with a jury for ten days while the State of New York prosecuted him for a number of sex-related crimes. Nessa Winder and Breda Keegan were the complaining witnesses. A grand jury had indicted Agard on two counts with respect to Keegan’s claims and fourteen counts with respect to Winder’s. Three additional counts dealt with the unlawful possession of a revolver. After four days of deliberation, the jury acquitted Agard on both counts involving Keegan and on all the sex abuse counts involving Winder except a count of anal sodomy and a count of assault associated with one of the rape claims, which the trial court subsequently dismissed as repugnant to Agard’s acquittal on the pertinent rape claim. The jury convicted Agard on two counts of unlawful possession, but one of the counts was dismissed by the court as duplicitous.
On the appeal of Agard’s conviction, the Appellate Division, Second Department, stated that there was “overwhelming evidence of the defendant’s guilt” and that the evidence “was legally sufficient to establish the defendant’s guilt beyond a reasonable doubt.” 199 A.D.2d 401, 402, 606 N.Y.S.2d 239 (1998), leave to appeal denied, 83 N.Y.2d 868, 613 N.Y.S.2d 129, 635 N.E.2d 298 (1994). The Court found “no merit” in the arguments that my colleagues herein advance. Frankly, I don’t find any either.
Perhaps a good starting point for my expressions of disagreement with my colleagues is to restate the limited authority that a federal court has in reviewing a petition for habeas corpus relief based upon an asserted state court error. This is described in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), as follows:
The Court of Appeals in this case noted, as petitioner urged, that its review was “the narrow one of due process, and not the broad exercise of supervisory power that [it] would possess in regard to [its] own trial court.” We regard this observation as important for not every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a “failure to observe that fundamental fairness essential to the very concept of justice.” Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 290, 86 L.Ed. 166 (1941).
Id. at 642, 94 S.Ct. at 1871 (footnote omitted).
It is in the light of these words that we should view Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), which my colleagues treat as a guiding star for the grant of relief herein. The case of United States v. Hasting, 461 U.S. 499, 508-09, 103 S.Ct. 1974, 1980-91, 76 L.Ed.2d 96 (1983), sets forth the correct weight to be accorded Griffin:
Soon after Griffin, however, this Court decided Chapman v. California, which involved prosecutorial comment on the defendant’s failure to testify in a trial that had been conducted in California before Griffin was decided. The question was whether a Griffin error was per se error requiring automatic reversal or whether the conviction could be affirmed if the re*717viewing court concluded that, on the whole record, the error was harmless beyond a reasonable doubt. In Chapman this Court affirmatively rejected a per se rule.
After examining the harmless-error rules of the 50 States along with the federal analog, 28 U.S.C. § 2111, the Chapman Court stated:
“All of these rules, state or federal, serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial. We conclude that there may he some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.” 386 U.S., at 22, 87 S.Ct. at 827 (emphasis added).
In holding that the harmless-error rule governs even constitutional violations under some circumstances, the Court recognized that, given the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and that the Constitution does not guarantee such a trial. Brown v. United States, 411 U.S. 223, 231-232, 93 S.Ct. 1565, 1570-1571, 36 L.Ed.2d 208 (1973), citing Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 1627, 20 L.Ed.2d 476 (1968); cf. Engle v. Isaac, 456 U.S. 107, 133-134, 102 S.Ct. 1558, 1574-1575, 71 L.Ed.2d 783 (1982). Chapman reflected the concern, later noted by Chief Justice Roger Tray-nor of the Supreme Court of California, that when courts fashion rales whose violations mandate automatic reversals, they “retrea[t] from their responsibility, becoming instead ‘impregnable citadels of technicality.’ ” R. Traynor, The Riddle of Harmless Error 14 (1970)(quoting Kavanagh, Improvement of Administration of Criminal Justice by Exercise of Judicial Power, 11 AB.AJ. 217, 222 (1925)) (footnote omitted).
I suggest that the following two excerpts from my colleagues’ opinions may very well qualify as “impregnable citadels of technicality.”
So long as New York prohibits criminal defendants from introducing prior consistent statements to demonstrate that their version of evidence was not fabricated after learning of the prosecution’s evidence, its prosecutors may not, in my view, argue that such fabrication occurred.
Winter op. at 2.
It is certainly true that defendants are present in courtrooms every day. We hope it is not true that prosecutors in courtrooms all across the country are every day commenting upon a criminal defendant’s presence at his own trial as though that presence were a license to lie. We intend to ensure .that there is never a day on which they are free so to comment within our jurisdiction.
Oakes op. at 40 n. 15.
The issue that should be determinative in every case is whether the petitioner had a fair trial. Malley v. Manson, 547 F.2d 25, 28 (2d Cir.1976), cert. denied, 430 U.S. 918, 97 S.Ct. 1335, 51 L.Ed.2d 598 (1977).
Although both judges and laymen agree that litigants are entitled to a fair trial, they are mistaken if they believe that the concept of fairness had its origin in the United States Constitution. Fairness was recognized as a matter of plain common sense long before the Constitution came into existence. The right of a defendant to be heard has been called one of the “first principles of the social compact and of the right administration of justice,” McVeigh v. United States, 78 U.S. (11 Wall.) 259, 267, 20 L.Ed. 80 (1870), “a principle of natural justice, recognized as such by the common intelligence and conscience of all nations,” Windsor v. McVeigh, 93 U.S. 274, 277, 23 L.Ed. 914 (1876). A Latin phrase, the English translation of which is “[h]e who determines any matter without hearing both sides, though .he may have decided, right, has not done justice,” is attributed to the Roman philosopher, Seneca, who lived some seventeen centuries before the Constitution was written.
*718A similar principle with “ancient roots” is the right of a defendant to be present in court to confront and cross-examine prosecution witnesses. See Goldberg v. Kelly, 397 U.S. 254, 270, 90 S.Ct. 1011, 1021, 25 L.Ed.2d 287 (1970). The defendant’s presence “is fundamental to the basic legitimacy of the criminal process,” United States v. Washington, 705, F.2d 489, 497 (D.C.Cir.1983) (per curiam), and is required by the “dictates of humanity,” Lewis v. United States, 146 U.S. 370, 372, 13 S.Ct. 136, 137, 36 L.Ed. 1011 (1892) (internal quotation marks omitted). Indeed, so strong is the defendant’s right to be present that, for a time, the Supreme Court held that it could not be waived. See id. at 373-74, 13 S.Ct. at 137-38; Hopt v. Utah, 110 U.S. 574, 579, 4 S.Ct. 202, 204, 28 L.Ed. 262 (1884). The right to be present has been said to be “scarcely less important to the accused than the right of trial itself.” Diaz v. United States, 223 U.S. 442, 455, 32 S.Ct. 250, 254, 56 L.Ed. 500 (1912). “The very substance of the defendant’s right is to be present. By hypothesis it is unfair to exclude him.” Snyder v. Massachusetts, 291 U.S. 97, 136-37, 54 S.Ct. 330, 343, 78 L.Ed. 674 (1934) (Roberts, J., dissenting); see also Greene v. McElroy, 360 U.S. 474, 496-97, 79 S.Ct. 1400, 1413-14, 3 L.Ed.2d 1377 (1959).
Today, in both the New York and the federal courts, a defendant not only has the right to be present throughout the trial, he has the duty to be present, subject only to certain limited exceptions. See Fed.R.Crim.P. 43; N.Y.Crim. Proc. L. §§ 260.20 and 340.50; People v. Winship, 309 N.Y. 311, 313-14, 130 N.E.2d 634 (1955) (per curiam). Jurors are not blind fools, oblivious to the world around them. It is, I believe, safe to say that the jurors,'who heard the prosecutor’s comments concerning Agard’s opportunity to hear the State’s witnesses before he himself testified, had seen scores of trials portrayed in the ‘movies and on television or had read about them; and almost without exception, the defendant was present during each trial. If for no other reason, the defendant is required to be present so that he may be identified. What juror has not felt a tingle as he witnessed the dramatic spectacle of a prosecutor pointing to the defendant and asking the victim “Is this the man who —?” Like all of us, jurors expect the defendant to be present in court, and, insofar as the lay jury is concerned, that expectation is based on plain common-sense, not the Sixth Amendment. Simply put, how could a defendant dispute the testimony of the prosecution’s witnesses if he didn’t know what they said?
I believe it is most unfair to the prosecutor in the instant case to hold that she “specifically target[ed] and east suspicion upon the defendant’s unique Sixth Amendment right to be present at his trial and hear all testimony.” Oakes op. at 40. There was nothing “unique” about the defendant’s presence, and I cannot agree that the prosecutor “cast suspicion” upon it. Defendants are present in courtrooms all across the country every working day. It was obvious to the jurors who sat through the ten-day trial that the defendant also was there and could hear the State’s witnesses testify before he offered his own version of the events in question. In view of all of the foregoing, I search in vain for constitutional error in the prosecutor’s statement concerning Agard’s presence at trial.
My colleagues argue that the prosecutor’s comment “invite[d] the jury to consider [Agard’s] exercise of his right to confrontation as evidence of guilt, and therefore penalize[d] him for exercising that right.” Oakes op. at 33. They say that this comment “implied] that a truthful defendant would have stayed out of the courtroom before testifying.” Id. The implication, in other words, is that a truthful defendant would have sequestered himself voluntarily, just as all other witnesses were involuntarily sequestered. The Supreme Court long ago provided the answer to this implication in Geders v. United States, 425 U.S. 80, 88, 96 S.Ct. 1330, 1334, 47 L.Ed.2d 592 (1976):
But the petitioner was not simply a witness; he was also the defendant. A sequestration order affects a defendant in quite a different way from the way it affects a nonparty witness who presumably has no stake in the outcome of the trial. A nonparty witness ordinarily has little, other than his own testimony, to discuss with trial counsel; a defendant in a criminal *719case must often consult with his attorney during the trial. Moreover, “the rule” accomplishes less when it is applied to the defendant rather than a nonparty witness, because the defendant as a matter of right can be and usually is present for all testimony and has the opportunity to discuss his testimony with his attorney up to the time he takes the witness stand.
My colleagues’ assertion that jurors wouldn’t recognize this distinction between defendants and witnesses again belittles the common sense of jurors. In attempting to measure the effect of the prosecutor’s statement, I am unable to even visualize a juror rising to his feet in the jury room and saying, “If Agard is innocent, he would not have sat in the courtroom during the entire trial. He would have gone about his business and let his lawyer fend for himself.”
As already observed, state appellate courts have a great deal more supervision and control over the conduct of their trial courts than do federal courts passing upon habeas corpus applications by state defendants. It is significant, therefore, that a number of state courts have found no violation of defendants’ rights by comments similar to those of the prosecutor in the instant case. For example, in State v. Robinson, 157 N.J.Super. 118, 384 A.2d 569, 570 (App.Div.) (per curiam), cert. denied, 77 N.J. 484, 391 A.2d 498 (1978), the prosecutor argued that the defendant “had the ability to sit here and listen to the other witnesses testify.” The court rejected the defendant’s claim of error with the following language.
We conclude that the prosecutor’s comments did not in any way deprive defendant of his right to confront the witnesses against him or of his right to be present at his trial. Obviously he did confront these witnesses and was present at his trial. And a reasonable reading of the comments clearly reveals that they were a comment on the credibility of defendant’s testimony. It is well settled that when a defendant waives his right to remain silent and takes the stand in his own defense, he thereby subjects himself to cross-examination as to the credibility of his story. And that issue would involve whether the story had been fabricated. State v. Kimbrough, 109 N.J.Super. 57, 67, 262 A.2d 232 (App.Div.1970); State v. Burt, 107 N.J.Super. 390, 393, 258 A.2d 711 (App.Div.1969), aff'd. o.b. 59 N.J. 156, 279 A.2d 850 (1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 728, 30 L.Ed.2d 735 (1972). Here the issue of defendant’s credibility was whether his testimony was tailored to that of the testimony of other witnesses, a perfectly proper inquiry.
The foregoing language was quoted verbatim in People v. Buckey, 424 Mich. 1, 378 N.W.2d 432, 438 (1985), where the same result was reached.
In Reed v. State, 633 S.W.2d 664, 666 (Tex.Ct.App.1982), the prosecutor told the jury: “And, you heard from the defendant. You heard the defendant’s story. Of course, you got to hear the defendant’s story after he had listened to everyone else testify — .” The Court of Appeals said the “comment was a reasonable one, not manifestly improper and prejudicial, and did not deprive appellant of a fair trial.” See also State v. Howard, 323 N.W.2d 872, 874 (S.D.1982).
In United States v. Warren, 973 F.2d 1304 (6th Cir.1992), trial below began on June 7, 1991. The Government made its opening statement on that day, but the defendant did not. The trial then was recessed until June 17 so that the judge could attend a judicial conference, and the recess continued for two more days because of illness of the judge’s wife. In the prosecutor’s closing argument to the jury, he said:
I gave my opening argument, tomorrow it will be two weeks ago. The truth hasn’t changed since I gave you the original opening argument. The defendant waited to hear our witnesses before coming up with his version of the truth yesterday. But I submit to you I have proven the case against James Henry Warren that I told you I would prove'two weeks ago.
Id. at 1307.
The Court of Appeals held there was no error, stating:
The argument of the prosecuting attorney is nothing more than fair comment on defendant’s reservation of his opening *720statement and his allegedly concocted testimony that he had merely assisted John Williams in the pawning of Williams’ pistol. This is the kind of thrust and parry customary in jury argument.
Id.
I must confess that I am baffled by some of my colleagues’ arguments. Judge Oakes states, for example, that “[i]t is perfectly proper for a prosecutor to cross-examine a defendant about those portions of his testimony which have indicia of fabrication.” Oakes op. at 38. I agree. He then continues, “[w]hen, however, a prosecutor raises the specter of fabrication 1) for the first time on summation; 2) without facts in evidence to support the inference; or 3) in a manner which directly attacks the defendant’s right to be present during his entire trial, our alarm bells begin to ring. When all three circumstances are present, the bells become shrill sirens.” I have read and reread the prosecutor’s statements and I heard neither bells nor sirens. Judge Oakes goes on, “Lawyers may not raise innuendo relating to bias or credibility from the shadows of unliti-gated facts for the first time in their closing arguments.” Id. at 38-39. If the lawyers were not litigating the facts relating to credibility during the course of the trial, I find it difficult to imagine what they were doing. To “fabricate” means to lie. See Webstee’s ThiRd New International Dictionary 811. The specter of fabrication pervaded the trial from its opening day. Winder testified that Agard committed anal sodomy on her; Agard said that he did not. One of them was not telling the truth. My colleague’s statement, that the specter of fabrication was raised for the. first time on summation and that there were no facts in evidence to support the inference of fabrication, is without basis in the record.
I am troubled by my colleagues’ assertion that Agard had no chance to respond to the prosecutor’s comments. “The normal function of rebuttal is to explain or rebut evidence offered by the adverse party.” United States v. Neary, 733 F.2d 210, 220 (2d Cir.1984). The Sixth Amendment protects a. defendant’s right to confront witnesses, not lawyers. Moreover, judges in both the New York and the federal courts are vested with discretion to reopen a case after the defendant has rested. See People v. Harami, 93 A.D.2d 867, 868, 461 N.Y.S.2d 376 (1983) (mem.); People v. Benham, 160 N.Y. 402, 437, 55 N.E. 11 (1899); United States v. Burger, 739 F.2d 805, 809-10 (2d Cir.1984). If the prosecutor’s statements were as improper and as harmful as my colleagues now contend, defense counsel should have requested the trial court for permission to put the defendant back on the witness stand. In view of the lack of merit in the claim of prejudicial error, I doubt that such a request would have been granted. The telling fact is that defense counsel did not make the request.
I am troubled also by Judge Oakes’ casual treatment of the trial judge’s “standard jury instruction” that comments by the lawyers are not evidence and that the jury’s recollection of events should control. “A crucial assumption underlying [the system of trial by jury] is that juries will follow the instructions given them by the trial judge.” Parker v. Randolph, 442 U.S. 62, 73, 99 S.Ct. 2132, 2139, 60 L.Ed.2d 713 (1979) (quoted with approval in Francis v. Franklin, 471 U.S. 307, 324 n. 9, 105 S.Ct. 1965, 1976 n. 9, 85 L.Ed.2d 344 (1985)). “ ‘In the absence of definitive studies to the contrary, we must assume that juries for the most part understand and faithfully follow instructions.’” Connecticut v. Johnson, 460 U.S. 73, 85 n. 14, 103 S.Ct. 969, 977 n. 14, 74 L.Ed.2d 823 (1983) (quoting Chief Justice Traynor’s monograph on harmless error, supra, at 73-74, 103 S.Ct. at 970-71).
To repeat what I already have said, I believe it is absolutely essential for defendants to be present to hear the comments of the prosecution’s witnesses so that they can respond to them and aid in their own defense. See United States v. Gregorio, 497 F.2d 1253, 1259 (4th Cir.), cert. denied, 419 U.S. 1024, 95 S.Ct. 501, 42 L.Ed.2d 298 (1974). Moreover, every juror with a modicum of common sense must realize that this is so. I find no error, therefore, in the prosecutor’s comments about Agard’s presence. “[Constitutional error occurs only when the prosecutorial remarks were so *721prejudicial that they rendered the trial in question fundamentally unfair.” Garofolo v. Coomb, 804 F.2d 201, 206 (2d Cir.1986). Forceful and vigorous argument by a prosecutor is not forbidden if based on the evidence. United States v. Brown, 456 F.2d 293, 295 (2d Cir.) (per curiam), cert. denied, 407 U.S. 910, 92 S.Ct. 2436, 32 L.Ed.2d 684 (1972); United States v. Smith, 778 F.2d 925, 929 (2d Cir.1985).
It would be a miscarriage of justice to call the state trial fundamentally unfair. My colleagues’ discussions of possible inferences that a jury might draw are ingenious but not persuasive. Six state court judges and the district court below found no prejudicial error. Conviction on three counts out of nineteen after four days of deliberation is not very strong evidence of prejudice. Although we are not bound by the statement of the Appellate Division that proof of Agard’s guilt was “overwhelming,” cases such as Alston v. Redman, 34 F.3d 1237, 1242 (3d Cir.1994), cert. denied, 513 U.S. 1160, 115 S.Ct. 1122, 130 L.Ed.2d 1085 (1995), and Tanner v. Vincent, 541 F.2d 932, 937 (2d Cir.1976), cert. denied, 429 U.S. 1065, 97 S.Ct. 794, 50 L.Ed.2d 782 (1977), teach us that the following brief statement of facts in that court’s opinion must be accorded substantial deference:
The complainant testified that on May 6, 1990, the defendant held a gun to her head, threatened to kill her, and beat her in the course of forcing her to have anal intercourse by “forcible compulsion.” Later at the emergency room of a hospital, the victim was found to have bruises on her arms and legs, a cut lip, and a black eye so seriously battered that she had hemorrhages in it four to five weeks later, as well as floating spots up to the day of trial. In addition, the defendant admitted to owning a gun, which was recovered by the police.
199 A.D.2d at 402, 606 N.Y.S.2d 239.
Miss Winder swore that she was sexually mistreated, and the indisputable facts clearly established that more than a simple amorous tete-a-tete had taken place. She said that she was threatened with a gun, and a gun was found in Agard’s possession. Agard’s abject apology found on Winder’s answering machine the following day was not made without a compelling reason.
When this appeal was argued in our Court, two young women came in, listened to the argument and then left. Although I had no way of knowing who they were, their presence reminded me that, whatever the morals of the two female complainants, they also have rights that courts should recognize.