Right of allocution subject to cross-examination

The Supreme Court of California, on Thursday, issued a rather curious opinion, holding that a defendant has no right of allocution unless it is subject to cross-examination by the prosecution. Granted, this was a case of statutory interpretation and thus, has no bearing on any other State, it is still indicative of some trends in the criminal justice system nationwide.

The right of allocution, which has its roots in common law, is the right of a defendant to make a statement to the court on his own behalf and present information in mitigation of sentence. It started out as the ancient common-law practice of inquiring of every defendant if he had anything to say before sentence was imposed.

Back in the day, when death was the only punishment and defendants had no counsel, it was used to beg for mercy. In modern times, the right had evolved to permit a defendant to plead for a more lenient sentence and to fit with our modern sense of justice and the (now antiquated) desire to rehabilitate. At one point in the not-so-distant past, we treated defendants as individuals and allocution was an opportunity – a final opportunity – for the defendant to explain to the judge, in his or her own words, why he should get a certain punishment and not any other.

A defendant will stand before the court, allocuting (and thus elocuting), only if he is a convict. Which is why it is curious that the California Supreme Court chose to construe its statute in the way it did. Not because it is not a reasonable interpretation of the Statute, but because, in my opinion, there was really no need to do so.

Most judges are smart enough to know when the defendant is being sincere and when not and I’ve often seen judges here in CT expressly disagree with some of the “mitigating” statements made by defendants during allocution. Sometimes, only sometimes, do these statements have any impact on the sentence to be imposed.

More than anything, it is an avenue for the defendant, who is about to have his freedom and liberty taken away for (often) a long period of time, to feel like he had an opportunity to say something to the Court. More often than not, what the defendant says in court is heavily controlled by counsel and happens only under the narrowest of circumstances.

But it would behoove us to remember that these are not cattle or numbers. These are people, who have done bad things and who will have to pay for them. Before we send them away for significant stretches of time (and forget about them), we should grant them this much: the opportunity to speak unfettered by the constraints of evidentiary rules. It will almost certainly have no impact on the verdict or the sentence to be imposed.

By requiring such statements to be made under oath and subject to cross-examination, the California Supreme Court has offered the criminal justice system another opportunity to dump on defendants and to rub their nose in the fact that they are now criminals and nothing they say can or should be trusted.

Maybe it is a fundamental difference in the way we view defendants. I don’t view them as bad people, but rather as people who have made bad decisions. As such, every person should have the opportunity to say something to appease his or her mind.

In Connecticut, the right of allocution is provided for by Practice Book Section 43-10. Justice Berdon explained1 why the right is so important:

Modern day justifications for preserving the practice focus on tailoring punishment to individual circumstances, providing an avenue through which a defendant may ask for mercy based on factors that might not otherwise be brought to the court’s attention, and promoting safety, certainty and equity in sentencing and the judicial process overall. The opportunity to plead for mercy is another provision in a procedural body of law designed to enable our system of justice to mete out punishment in the most equitable fashion possible, to help ensure that sentencing is particularized and reflects individual circumstances. . .

Aside from its practical role in sentencing, the right has value in terms of maximizing the perceived equity of the process. The right of allocution affords a criminal defendant the opportunity to make a final plea to the judge on his own behalf prior to sentencing. . . . Ancient in law, allocution is both a rite and a right. It is designed to temper punishment with mercy in appropriate cases. Allocution provides a defendant the opportunity to meaningfully participate in the sentencing process and to show that he or she is a complex individual and not merely an object to be acted upon.
(Internal citations and quotations ommitted.) Interestingly, the CT Supreme Court has held that there is no right to allocution during the penalty phase of a capital trial2.

This CA decision leads me to wonder if the CA court would require victim statements to be made under oath and subject to cross-examination. The modern trend has been to allow greater participation of victims in the criminal justice system (something that I have not always agreed with) and to make it easier for the defendant to be labeled a criminal and herded along with the rest of his brethren. But one of the complaints I hear from clients is that the victim spoke during sentencing and made several, unsubstantiated, untrue statements

None found.
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