438 U.S. 41 (1978), 76-1572, United States v. Grayson

Docket Nº:No. 76-1572
Citation:438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582
Party Name:United States v. Grayson
Case Date:June 26, 1978
Court:United States Supreme Court

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438 U.S. 41 (1978)

98 S.Ct. 2610, 57 L.Ed.2d 582

United States



No. 76-1572

United States Supreme Court

June 26, 1978

Argued February 22, 1978




A sentencing judge, in fixing the sentence of a defendant within statutory limits, may consider the defendant's false testimony observed by the judge during the trial. Pp. 45-55.

(a) A defendant's truthfulness or mendacity while testifying on his own behalf is probative of his attitudes toward society and prospects for rehabilitation, and is thus a relevant factor in the sentencing process. Pp. 50-51.

(b) Taking into account a defendant's false testimony does not constitute punishment for the crime of perjury for which the defendant has not been indicted, tried, or convicted by due process; rather, it is an attempt rationally to exercise judicial discretion by evaluating the defendant's personality and prospects for rehabilitation. To the extent that a sentencing judge is precluded from relying on relevant information concerning "every aspect of a defendant's life," Williams v. New York, 337 U.S. 241, 250, the effort to appraise character degenerates into a game of chance. Pp. 53-54.

(c) Judicial consideration of the defendant's conduct during trial does not impermissibly "chill" his constitutional right to testify in his own behalf, for the right guaranteed to a defendant is the right to testify truthfully in accordance with his oath. A sentencing judge, however, is not required automatically to enhance the sentence of a defendant who falsely testifies, but, rather, the judge is authorized, where he determines that the testimony is willfully and materially false, to assess the defendant's rehabilitation prospects in light of that and all the other knowledge gained about the defendant. Pp. 54-55.

550 F.2d 103, reversed and remanded.

BURGER, C.J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. STEWART, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 55.

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BURGER, J., lead opinion

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted certiorari to review a holding of the Court of Appeals that it was improper for a sentencing judge, in fixing the sentence within the statutory limits, to give consideration to the defendant's false testimony observed by the judge during the trial.


In August, 1975, respondent Grayson was confined in a federal prison camp under a conviction for distributing a controlled substance. In October, he escaped, but was apprehended two days later by FBI agents in New York City. He was indicted for prison escape in violation of 18 U.S.C. § 751(a) (1976 ed.).

During its case in chief, the United States proved the essential elements of the crime, including his lawful confinement and the unlawful escape. In addition, it presented the testimony of the arresting FBI agents that Grayson, upon being apprehended, denied his true identity.

Grayson testified in his own defense. He admitted leaving the camp, but asserted that he did so out of fear:

I had just been threatened with a large stick with a nail protruding through it by an inmate that was serving time at Allenwood, and I was scared, and I just ran.

He testified that the threat was made in the presence of many inmates by prisoner Barnes, who [98 S.Ct. 2612] sought to enforce collection of a gambling debt, and followed other threats and physical assaults made for the same purpose. Grayson called one inmate, who testified:

I heard

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[Barnes] talk to Grayson in a loud voice one day, but that's all. I never seen no harm, no hands or no shuffling whatsoever.

Grayson's version of the facts was contradicted by the Government's rebuttal evidence and by cross-examination on crucial aspects of his story. For example, Grayson stated that, after crossing the prison fence, he left his prison jacket by the side of the road. On recross, he stated that he also left his prison shirt, but not his trousers. Government testimony showed that, on the morning after the escape, a shirt marked with Grayson's number, a jacket, and a pair of prison trousers were found outside a hole in the prison fence.1 Grayson also testified on cross-examination:

I do believe that I phrased the rhetorical question to Captain Kurd, who was in charge of [the prison], and I think I said something, if an inmate was being threatened by somebody, what would . . . he do? First of all, he said he would want to know who it was.

On further cross-examination, however, Grayson modified his description of the conversation. Captain Kurd testified that Grayson had never mentioned in any fashion threats from other inmates. Finally, the alleged assailant, Barnes, by then no longer an inmate, testified that Grayson had never owed him any money and that he had never threatened or physically assaulted Grayson.

The jury returned a guilty verdict, whereupon the District Judge ordered the United States Probation Office to prepare a

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presentence report. At the sentencing hearing, the judge stated:

I'm going to give my reasons for sentencing in this case with clarity, because one of the reasons may well be considered by a Court of Appeals to be impermissible; and although I could come into this Court Room and sentence this Defendant to a five-year prison term without any explanation at all, I think it is fair that I give the reasons, so that, if the Court of Appeals feels that one of the reasons which I am about to enunciate is an improper consideration for a trial judge, then the Court will be in a position to reverse this Court and send the case back for resentencing.

In my view, a prison sentence is indicated, and the sentence that the Court is going to impose is to deter you, Mr. Grayson, and others who are similarly situated. Secondly, it is my view that your defense was a complete fabrication without the slightest merit whatsoever. I feel it is proper for me to consider that fact in the sentencing, and I will do so.

(Emphasis added.) He then sentenced Grayson to a term of two years' imprisonment, consecutive to his unexpired sentence.2

On appeal, a divided panel of the Court of Appeals for the Third Circuit directed that Grayson's sentence be vacated and that he be resentenced by the District Court without consideration of false testimony. 550 F.2d 103 (1977). Two judges concluded that this result was mandated by language in a prior decision of the Third Circuit, Poteet v. Faltier, 517 F.2d 393, 395 (1975): "[T]he sentencing judge may not add a penalty because he believes the defendant lied." One judge, in a concurring opinion, suggested that the District Court's reliance on [98 S.Ct. 2613] Grayson's false testimony in fixing the sentence

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"trenches upon a defendant's constitutional privilege to testify in his own behalf, as well as his right to have criminal charges," such as one for perjury, formally adjudicated "pursuant to procedures required by due process." 550 F.2d at 108. The dissenting judge challenged both the applicability of Poteet and the suggestion that the District Court's approach to Grayson's sentence was constitutionally impermissible.

We granted certiorari to resolve conflicts between holdings of the Courts of Appeals.3 434 U.S. 816 (1977). We reverse.


In Williams v. New York, 337 U.S. 241, 247 (1949), Mr. Justice Black observed that the "prevalent modern philosophy of penology [is] that the punishment should fit the offender, and not merely the crime," and that, accordingly, sentences should be determined with an eye toward the "[r]eformation and rehabilitation of offenders." Id. at 248. But it has not always been so. In the early days of the Republic, when imprisonment had only recently emerged as an alternative to the death penalty, confinement in public stocks, or whipping in the town square, the period of incarceration was generally prescribed with specificity by the legislature. Each crime had its defined punishment. See Report of Twentieth Century Fund Task Force on Criminal Sentencing, Fair and Certain Punishment 885 (1976) (Task Force Report). The "excessive rigidity of the [mandatory or fixed sentence]

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system" soon gave way in some jurisdictions, however, to a scheme permitting the sentencing judge -- or jury -- to consider aggravating and mitigating circumstances surrounding an offense, and, on that basis, to select a sentence within a range defined by the legislature. Tappan, Sentencing Under the Model Penal Code, 23 Law & Contemp.Prob. 528, 529 (1958). Nevertheless, the focus remained on the crime: Each particular offense was to be punished in proportion to the social harm caused by it and according to the offender's culpability.4 See, e.g., Iowa Code of 1851, Tit. XXIV, ch. 182, §§ 3067, 3068, reprinted in S. Rubin, Law of Criminal Correction 131-132 (2d ed.1973). The purpose of incarceration remained, primarily, retribution and punishment.

Approximately a century ago, a reform movement asserting that the purpose of incarceration, and therefore the guiding consideration in sentencing, should be rehabilitation of the offender,5 dramatically altered the approach to sentencing. A fundamental proposal of this movement was a flexible sentencing system permitting judges and correctional personnel, particularly the latter, to set the release date of prisoners according to informed judgments concerning their potential for, or actual, rehabilitation and their likely recidivism. Task Force Report 82. Indeed, the most extreme formulations of the emerging rehabilitation model, with its "reformatory sentence,"...

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