Allocution

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 jurisdictions using common law.

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

Concept

An allocution 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 the actions and their reasons in exchange for a reduced sentence.

In principle, that 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, but 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 rarely has the opportunity to speak.

The right of victims to speak at sentencing is also sometimes referred to as allocution.[1]

Australia

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.

The right to make a plea in mitigation is absolute. If a judge or magistrate refuses to hear such a plea or does not properly consider it, the sentence can be overturned on appeal.

United States

In most of the United States, defendants are allowed the opportunity to allocute before a sentence is passed. Some jurisdictions hold that as an absolute right. In its absence, a sentence but not the conviction may be overturned, resulting in the need for a new sentencing hearing. In the federal system, Federal Rules 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."[2]

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).[3]

See also

References
  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. "Rule 32. Sentencing and Judgment". LII / Legal Information Institute. 30 November 2011. Retrieved 22 December 2017.
  3. "Archived copy" (PDF). Archived from the original (PDF) on 19 October 2011. Retrieved 22 December 2017.CS1 maint: archived copy as title (link)
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