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July 24, 2008

Interesting California opinion about right of allocution at sentencing

This new piece from the San Francisco Chronicle discusses this interesting new ruling from the California Supreme Court.  Here first is the press account:

A criminal defendant's right to address the judge before sentencing and plead for mercy without being cross-examined, a right traced back to 17th century England, doesn't exist in California, the state Supreme Court ruled today.

In a case from San Mateo County, the justices ruled unanimously that a defendant who is about to be sentenced must be treated like any other witness — testifying under oath and subject to cross-examination by the prosecutor — when asking for leniency.

Here is the start of the unanimous opinion in People v. Evans:

California law requires that in a criminal case a trial court must, before imposing sentence, ask the defendant whether there is “any legal cause to show why judgment should not be pronounced against him.” (Pen. Code, § 1200.)  This inquiry is called the “allocution.” At issue is whether, in response to the allocution, the defendant has the right to make an unsworn personal statement in mitigation of punishment.  Here, the Court of Appeal held that a criminal defendant has no such right, expressly disagreeing with In re Shannon B. (1994) 22 Cal.App.4th 1235 (Shannon B.), in which a different Court of Appeal reached a contrary conclusion.  We conclude that California law gives a defendant the right to make a personal statement in mitigation of punishment but only while under oath and subject to cross-examination by the prosecutor.

July 24, 2008 at 05:50 PM | Permalink

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Comments

Could a def submit a written statement to the jury about specific mitigating factors? We hand up character reference letters, unsworn and by persons not present in the courtroom , all the time during sentencing hearings? The rule would be that the statement could not touch on guilt innocence issues. The State could present rebuttal evidence to things the def says, just like any other witness.

I represented the last person in north carolina, Sam Miller, who was allowed to allocute before the NC Supreme Court changed the rule.

With our new found sensitivity to the distinction between guilt issues and sentencing issues, emanating from Apprendi/Ring, seems to me we could fashion a rule that tracks the Ring distinction between elements of crime and factors for sentencing.

I frequently put on witnesses at capital sentencing proceedings who testify to hearsay or give opinions. If a witness can say "the def told me he was sorry" why can't the def say "I'm sorry"?

Bruce Cunningham

Posted by: | Jul 24, 2008 9:35:05 PM

These people are crazy...let the guy f'in talk...

Posted by: Anon | Jul 24, 2008 11:34:09 PM

But he might say something that, if other people heard it, would convert them to a life of crime. Criminals are VERY persuasive if you let them talk, that is why the commoners and judges should not be allowed to hear it.

Posted by: S.cotus | Jul 24, 2008 11:55:53 PM

This doesn't seem particularly unfair to the defense - but only if the rule about oath and cross-examination is rigorously enforced for all witnesses at sentencing hearings. My experience is that prosecution witnesses at sentencing (particularly victims) are almost always allowed to submit statements or address the judge without being sworn or being subject to cross-examination.
While it be theoretically possible for the defense to request the oath and cross-examination, the practice is highly discouraged.

If judges wish to enforce these requirements against defendants, they should also be enforced (at the court's own initiative) for every other witness at sentencing.

Posted by: rn | Jul 25, 2008 12:20:32 PM

Bruce, this is noncapital. The jury has already gone home.

Posted by: Kent Scheidegger | Jul 25, 2008 12:24:00 PM

This is nuts. While I'd assume the defendant is still under oath, and if he blatantly lied about a fact it might support a perjury charge later on... he shouldn't be cross-examined on his allocution. That's insane. And who gets the last word?

Posted by: bruce | Jul 25, 2008 4:31:53 PM

The other Bruce writes, "While I'd assume the defendant is still under oath, and if he blatantly lied about a fact it might support a perjury charge later on...."

The assumption is incorrect. From the opinion:

California law requires that in a criminal case a trial court must, before imposing sentence, ask the defendant whether there is “any legal cause to show why judgment should not be pronounced against him.” (Pen. Code, § 1200.) This inquiry is called the “allocution.” At issue is whether, in response to the allocution, the defendant has the right to make an unsworn personal statement in mitigation of punishment.

Posted by: Kent Scheidegger | Jul 25, 2008 5:00:26 PM

thanks Kent, it never crossed my mind that the case was noncapital. Guess I should read the opinion before I say anything.

Bruce Cunningham

Posted by: | Jul 25, 2008 9:40:27 PM

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