Allocution

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This article is about the common law legal procedure. For other uses, see Allocution (disambiguation).

An allocution or allocutus is a formal statement made to the court by the defendant who has been found guilty, prior to being sentenced. It is part of the criminal procedure in some common law jurisdictions.

An allocution, in mitigation,[clarify] allows the defendant to explain why the sentence should be lenient.

In plea bargains, an allocution may be required of the defendant; the defendant explicitly admits specifically and in detail to what he or she did and for what reason, in exchange for a reduced sentence. In principle, it removes any doubt as to the exact nature of the defendant's guilt in the matter.

The term "allocution" is used generally only in jurisdictions in the United States, though there are vaguely similar processes in other common law countries. In many other jurisdictions it is for the defense lawyer to mitigate on his client's behalf, and the defendant himself will rarely have the opportunity to speak. The right of victims to speak at sentencing is also sometimes referred to as allocution.[1]

Allocution often appears in novels and in movie and television scripts.

Usefulness[edit]

In common law, the right of a prisoner to speak in his own behalf, sometimes called the allocutus, was recognized as early as 1682. Its purpose was to give defendants, many of whom might have lacked counsel, an opportunity to present legal defenses that could result in a reprieve or other relief from sentence. The usefulness of allocution in modern courts is controversial. The Leff Dictionary of Law notes that allocution "has the practical advantage of preserving in the record, by the defendant's reply, evidence of his presence and freedom to speak."[2] D. Brock Hornby notes:

[3]

Allocution is sometimes used by defendants to explain their reasons for committing crimes and to criticize the criminal justice system, an example being Jeremy Hammond's statement to the court prior to being sentenced to 10 years in prison for hacktivism.[4]

Specific jurisdictions[edit]

Australia[edit]

In Australia the term allocutus is used by the Clerk of Arraigns or another formal associate of the Court. It is generally phrased as, "Prisoner at the Bar, you have been found Guilty by a jury of your peers of the offense of XYZ. Do you have anything to say as to why the sentence of this Court should not now be passed upon you?" The defense counsel will then make a plea in mitigation (also called submissions on penalty) in an attempt to mitigate the relative seriousness of the offense and heavily refer to and rely upon the defendant's previous good character and good works (if any).

In Australia, the right to make a plea in mitigation is absolute. If a judge or magistrate were to refuse to hear such a plea, or obviously fail to properly consider it, then the sentence would, without doubt, be overturned on appeal.

United States[edit]

In most United States jurisdictions, defendants are allowed the opportunity to allocute—that is, to explain themselves—before a sentence is passed. Some jurisdictions hold this as an absolute right, and, in its absence, a sentence (but not the conviction) may potentially be overturned, with the result that a new sentencing hearing must be held. In the federal system, Federal Rule of Criminal Procedure 32(i)(4) provides that the court must "address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence."[5] The Federal Public Defender recommends that defendants speak in terms of how a lenient sentence will be sufficient, but not greater than necessary, to comply with the statutory directives set forth in 18 U.S.C. § 3553(a).[6]

See also[edit]

References[edit]

  1. ^ Nicholson, Keith D. (1994–1995), Would You Like More Salt with That Wound - Post-Sentence Victim Allocution in Texas 26, St. Mary's L.J., p. 1103 
  2. ^ Leff (1985). "The Leff Dictionary of Law: A Fragment". Yale L.J. 94: 1855, 1999. 
  3. ^ Hornby, D Brock (01/01/2011). "Speaking in Sentences". The Green Bag. pp. 147–453.  Check date values in: |date= (help)
  4. ^ http://www.sparrowmedia.net/2013/11/jeremy-hammond-sentence/
  5. ^ http://www.law.cornell.edu/rules/frcrmp/Rule32.htm
  6. ^ http://www.fd.org/pdf_lib/allocution%20pleading.pdf