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UNITED STATES V. DUNNIGAN AND SENTENCE ENHANCEMENTS FOR PERJURY: CONSTITUTIONAL PERHAPS, BUT UNNECESSARY IN FACT

NCJ Number
146088
Journal
American Criminal Law Review Volume: 31 Issue: 1 Dated: (Fall 1993) Pages: 169-190
Author(s)
A L Feinstein
Date Published
1993
Length
22 pages
Annotation
Enhancement of sentences of defendants who present perjured testimony at trial is discussed.
Abstract
Section 3C1.1 of the Federal Sentencing Guidelines mandates an automatic increase in sentence if a defendant testifies on his own behalf at trial and the judge finds, by a preponderance of the evidence, that the defendant was untruthful. In Dunnigan, the Supreme Court upheld the constitutionality of this provision and attempted to clarify the way in which lower Federal courts should apply this provision. This Comment reviews the facts and the Fourth Circuit opinion in Dunnigan, criticizes the Court's response, and discusses several problems with sentence enhancement under Section 3C1.1. Because a court need only find perjury by a preponderance of the evidence, a judge may rely on the jury's verdict as evidence that, more probably than not, the defendant lied on the witness stand. A jury's verdict of guilty, however, does not necessarily indicate that the defendant perjured himself. Additionally, defendants who have their sentences enhanced pursuant to this section are denied a two-level reduction under section 3E1.1 of the Guidelines. The Comment suggests three safeguards against unjustly enhanced sentences for perjury including the imposition of a "no reasonable trier of fact" standard similar to the civil directed verdict standard and the requirement that judges make findings of perjury prior to hearing the jury verdict. The Comment concludes that the best mechanism to protect defendants from unjustly enhanced sentences would be the elimination of perjury enhancement with respect to a defendant's testimony at trial from section 3C1.1.

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