United States v. Grayson

Mr. Justice Stewart,

with whom Mr. Justice Brennan and Mr. Justice Marshall join, dissenting.

The Court begins its consideration of this case, anteved, 42, with the assumption that the respondent gave false testimony at his trial. But there has been no determination that his testimony was false. This respondent was given a greater sentence than he would otherwise have received — how much greater we have no way of knowing — solely because a single judge thought that he had not testified truthfully.1 In es*56sence, the Court holds today that whenever a defendant testifies in his own behalf and is found guilty, he opens himself to the possibility of an enhanced sentence. Such a sentence is nothing more or less than a penalty imposed on the defendant’s exercise of his constitutional and statutory rights to plead not guilty and to testify in his own behalf.2

It does not change matters to say that the enhanced sentence merely reflects the defendant’s “prospects for rehabilitation” rather than an additional punishment for testifying falsely.3 The fact remains that all defendants who choose to testify, and only those who do so, face the very real pros*57pect of a greater sentence based upon the trial judge’s un-reviewable perception that the testimony was untruthful. The Court prescribes no limitations or safeguards to minimize a defendant’s rational fear that his truthful testimony will be perceived as false.4 Indeed, encumbrance of the sentencing process with the collateral inquiries necessary to provide such assurance would be both pragmatically unworkable and theoretically inconsistent with the assumption that the trial judge is merely considering one more piece of information in his overall evaluation of the defendant’s prospects for rehabilitation. But without such safeguards I fail to see how the Court can dismiss as “frivolous” the argument that this sentencing practice will “inhibit exercise of the right to testify truthfully,” ante, at 55.

A defendant’s decision to testify may be inhibited by a number of considerations, such as the possibility that damaging evidence not otherwise admissible will be admitted to impeach his credibility. These constraints arise solely from the fact that the defendant is quite properly treated like any other witness who testifies at trial. But the practice that the Court approves today actually places the defendant at a disadvantage, as compared with any other witness at trial, simply because he is the defendant. Other witnesses risk *58punishment for perjury only upon indictment and conviction in accord with the full protections of the Constitution. Only the defendant himself, whose testimony is likely to be of critical importance to his defense,5 faces the additional risk that the disbelief of a single listener will itself result in time in prison.

The minimal contribution that the defendant's possibly untruthful testimony might make to an overall assessment of his potential for rehabilitation, see n. 3, supra, cannot justify imposing this additional burden on his right to testify in his own behalf. I do not believe that a sentencing judge’s discretion to consider a wide range of information in arriving at an appropriate sentence, Williams v. New York, 337 U. S. 241, allows him to mete out additional punishment to the defendant simply because of his personal belief that the defendant did not testify truthfully at the trial.

Accordingly, I would affirm the judgment of the Court of Appeals.

We know this only because of the trial judge’s laudable explication of his reasons for imposing the sentence in this case. In many cases it would be impossible to discern whether a sentencing judge had been influenced by *56his belief that the defendant had not testified truthfully, since there is no requirement that reasons be given. But that fact does not argue against correcting an erroneous sentencing policy that is apparent on the face of the record. Cf. Bordenkircher v. Hayes, 434 U. S. 357, 372 (Powell, J., dissenting). As the Court notes, ante, at 54, “[t]he integrity of the judges” is a sufficient guarantee that they will not consciously consider factors that have been declared impermissible, even if the reasons for imposing a particular sentence are not stated on the record.

The accused in a federal case has an absolute constitutional right to plead not guilty, and if he does elect to go to trial an absolute statutory right to testify in his own behalf. 18 U. S. C. § 3481 (1976 ed.). I cannot believe that the latter is not also a constitutional right, for the right of a defendant under the Sixth and Fourteenth Amendments “to make his defense,” Faretta v. California, 422 U. S. 806, 819, surely must encompass the right to testify in his own behalf. See Ferguson v. Georgia, 365 U. S. 570, 602 (dark, J., concurring).

Indeed, without doubting the sincerity of trial judges one may doubt whether the single incident of a defendant’s trial testimony could ever alter the assessment of rehabilitative prospects so drastically as to justify a perceptibly greater sentence. A sentencing judge has before him a presentenoe report, compiled by trained personnel, that is designed to paint as complete a picture of the defendant’s fife and character as is possible. If the defendant’s suspected perjury is consistent with the evaluation of the report, its impact on the rehabilitative assessment must be minimal. If, on the other hand, it suggests such a markedly different character that different sentencing treatment seems appropriate, the defendant is effectively being punished for perjury without even the barest rudiments of due process.

For example, the dissenting judge in the Court of Appeals in this case suggested that a sentencing judge “should consider his independent evaluation of the testimony and behavior of the defendant only when he is convinced beyond a reasonable doubt that the defendant intentionally lied on material issues of fact . . . [and] the falsity of the defendant’s testimony [is] necessarily established by the finding of guilt.” 550 F. 2d 103, 114 (Rosenn, J., dissenting). Contrary to Judge Rosenn, I do not believe that the latter requirement was met in this case. The jury could have believed Grayson’s entire story but concluded, in the words of the trial judge’s instructions on the defense of duress, that “an ordinary man” would not “have felt it necessary to leave the Allenwood Prison Camp when faced with the same degree of compulsion, coercion or duress as the Defendant was faced with in this case.”

Notwithstanding the standard instruction that the jury is not to draw any adverse inference from the defendant’s failure to testify, “a defendant who does not taire the stand will probably fatally prejudice his chances of acquittal.” Note, The Influence of the Defendant’s Plea on Judicial Determination of Sentence, 66 Yale L. J. 204, 212 n. 36 (1956).