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State v. Yi1/20/2004
, even one garbed in constitutional terms, can prevent improper use of firsthand observations of perjury. The integrity of the judges, and their fidelity to their oaths of office, necessarily provide the only, and in our view adequate, assurance against that.
Grayson's argument that judicial consideration of his conduct at trial impermissibly "chills" a defendant's statutory right, 18 U .S.C. § 3481 (1976 ed.), and perhaps a constitutional right to testify on his own behalf is without basis. The right guaranteed by law to a defendant is narrowly the right to testify truthfully in accordance with the oath--unless we are to say that the oath is mere ritual without meaning. This view of the right involved is confirmed by the unquestioned constitutionality of perjury statutes, which punish those who willfully give false testimony. See, e.g., 18 U.S.C. § 1621 (1976 ed.); cf. United States v. Wong, 431 U .S. 174[, 97 S.Ct. 1823, 52 L.Ed.2d 231] (1977). Further support for this is found in an important limitation on a defendant's right to the assistance of counsel: Counsel ethically cannot assist his [or her] client in presenting what the attorney has reason to believe is false testimony. See Holloway v. Arkansas, 435 U.S. 475, 480 n. 4[, 98 S.Ct. 1173, 1176 n. 4, 55 L.Ed.2d 426] (1978); ABA Project on Standards for Criminal Justice, The Defense Function § 7.7(c), p. 133 (Compilation 1974). Assuming, arguendo, that the sentencing judge's consideration of defendants' untruthfulness in testifying has any chilling effect on a defendant's decision to testify falsely, that effect is entirely permissible. There is no protected right to commit perjury.
***14 Grayson's further argument that the sentencing practice challenged here will inhibit exercise of the right to testify truthfully is entirely frivolous. That argument misapprehends the nature and scope of the practice we find permissible. Nothing we say today requires a sentencing judge to enhance, in some wooden or reflex fashion, the sentences of all defendants whose testimony is deemed false. Rather, we are reaffirming the authority of a sentencing judge to evaluate carefully a defendant's testimony on the stand, determine--with a consciousness of the frailty of human judgment--whether that testimony contained willful and material falsehoods, and, if so, assess in light of all the other knowledge gained about the defendant the meaning of that conduct with respect to his [or her] prospects for rehabilitation and restoration to a useful place in society. Awareness of such a process realistically cannot be deemed to affect the decision of an accused but unconvicted defendant to testimony truthfully in his [or her] own behalf.
(Some bracketed material in original, internal ellipses omitted.)
In State v. Nunes, 72 Haw. 521, 824 P.2d 837 (1992), the defendant appealed his sentence of thirty days in prison, claiming that the family court had unconstitutionally punished him based on a belief that the victim had lied for the defendant at trial. At the time, several sentencing guideline memoranda for household abuse cases had been circulated among the family court judges, one of which called for a sentence of thirty to sixty days in prison "where the victim lied for the defendant in Court." Id. at 523, 824 P.2d at 839. In vacating the sentence, the supreme court noted initially that although the testimony of the victim at trial conflicted with the statement she had made to police on the evening of the events leading to the defendant's arrest, there was no evidence that the defendant had asked the victim to lie in court or that he had intimidated or threatened her. Id. at 525-26, 824 P .2d at 840. The supreme court then stated:
In essence, the judge imposed a sentence for uncharged crimes--
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