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July 24, 2021

"Talking Back in Court"

The title of this post is the title of this notable new paper authored by Eve Hanan now available via SSRN. Here is its abstract:

People charged with crimes often speak directly to the judge presiding over their case.  Yet, what can be seen in courtrooms across the U.S. is that defendants rarely “talk back” in court, meaning that they rarely challenge authority’s view of the law, the crime, the defendant, the court’s procedure, or the fairness of the proposed sentence.

With few exceptions, legal scholars have treated the occasions when defendants speak directly to the court as a problem to be solved by appointing more lawyers and better lawyers.  While effective representation is crucial, this Article starts from the premise that defendants have important things to say that currently go unsaid in court.  In individual cases, talking back could result in fairer outcomes.  On a systemic level, talking back could bring much needed realism to the criminal legal system’s assumptions about crime and punishment that produce injustice.

This Article analyzes three types of power that prevent defendants from talking back in court: sovereign, disciplinary, and social-emotional power.  While sovereign power silences defendants through fear, disciplinary power silences defendants by imposing a system of order within which talking back seems disorderly.  Finally, social-emotional power silences defendants by imposing an emotional regime in which self-advocacy is both a breach of decorum and an affront to the court’s perception of itself as a source of orderliness and justice.  The dynamics of social-emotional power are particularly critical to evaluating court reform efforts focused on improving courtroom culture.  Paradoxically, the more solicitous the judge, the less the defendant may feel comfortable raising concerns that challenge the court’s narrative of justice.

July 24, 2021 at 02:35 PM | Permalink


This person must be nuts. If you did what she advocates in my court you can bet you are going to lose most of the time.

Judge, NY State

Posted by: Robert | Jul 25, 2021 11:41:53 AM

Thanks for chiming in, Judge. Part of the role of academics, I think, is to articulate ideas that seem "nuts" to bench and bar.

Posted by: Doug B. | Jul 25, 2021 2:11:23 PM

Judge Marvin Frankel shared a relevant anecdote in his famous book, Criminal Sentences: Law Without Order. He described a conversation with "Judge X," who went harder on defendants for talking back:

"Judge X . . . told of a defendant for whom the judge, after reading the presentence report, had decided tentatively upon a sentence of four years’ imprisonment. At the sentencing hearing in the courtroom, after hearing counsel, Judge X invited the defendant to exercise his right to address the court in his own behalf.

The defendant took a sheaf of papers from his pocket and proceeded to read from them, excoriating the judge, the 'kangaroo court' in which he’d been tried, and the legal establishment in general.

Completing the story, Judge X said, 'I listened without interrupting. Finally, when he said he was through, I simply gave the son of a bitch five years instead of the four.'"

Judge Frankel did not approve of this approach: "Would we tolerate an act of Congress penalizing such an outburst by a year in prison? The question, however rhetorical, misses one truly exquisite note of agony: that the wretch sentenced by Judge X never knew, because he was never told, how the fifth year of his term came to be added."

Posted by: Jacob Schuman | Jul 26, 2021 9:44:34 AM

The problem is that the defendant does not know what he needs to say to move the judge. I think that it is perfectly acceptable for the defendant to exercise his right to speak before sentencing, but it is a moment of great peril. A defendant who attacks the system and tries to blame the victim is likely to get a higher sentence. A defendant who accepts responsibility and shows a desire for rehabilitation may get a lower sentence, but, in talking about the need for rehabilitation, the defendant might say something that indicates that he is more of a danger to the community than the pre-sentence report indicates.

Posted by: tmm | Jul 26, 2021 10:26:34 AM

If the judge -- which very well might be true -- has such inclinations as spelled out by tmm, it's at least partially problematic.

A judge should recognized the nature of human nature and not let something like stress at the system (which they very well know is often justified) lead them to significantly add to their sentence.

There is a norm that showing some sense of contrition -- however feigned -- is deemed helpful. I think, one can be cynical here (as usual, the cynic might be the realist), but there is often some justified value seen in that. OTOH, mere words only go far there, and the judge have a reason to seek something to back them up.

The concern about saying something wrong is an issue. There is a basic reason why one has the right to remain silent. One is left with a balance there.

Also, the good judge again won't use the words too much against them. Often they won't say anything too special warranting a change in sentence. What is said is often likely to be fairly expected from the report and general nature of the defendant.

A recent discussion of Thurgood Marshall included his concern about the defendant having their say. Since he was both a defense lawyer and a judge, perhaps his word has some more respect than the average academic might have for some.


Posted by: Joe | Jul 26, 2021 1:13:11 PM

I don't think that judges are "punishing" a defendant for what the defendant is saying. It's more that a contested sentencing hearing is about two competing images of the defendant. From the prosecution side, the stereotypical argument is that the defendant has no remorse, has learned nothing from his offense, is only sorry about getting caught, and will reoffend if given again. From the defense side, the stereotypical argument is that this behavior is out of character for the defendant who is very, very sorry for what he did, would never do it again, and just needs a little help at getting his life back together. When the defendant speaks at sentencing, he effectively becomes a witness as to which of the two images is true. A defendant who goes on a rant and blames the court, the police, the prosecution, his attorney, the victim, etc., for what happened tends to make the prosecution's arguments seem more accurate. And it makes it harder for the judge to justify giving a break to the defendant.

Posted by: tmm | Jul 26, 2021 5:34:26 PM

Lawyers advise their clients not to "talk back" in court because doing so worsens their situation at least 90% of the time (although there are rare exceptions).

An associate attorney and I once physically lifted our client (in a civil case) who was doing this off his feet and got him out of the courtroom before he was held in contempt of court.

Talking back is a classic case of a moment of pleasure producing immense long term pain.

I understand why defendants do it, but those reasons are mostly illegitimate ones or reflect flaws in the character of the defendant.

Posted by: ohwilleke | Jul 26, 2021 7:34:59 PM

"A defendant who goes on a rant and blames the court, the police, the prosecution, his attorney, the victim, etc., for what happened tends to make the prosecution's arguments seem more accurate. And it makes it harder for the judge to justify giving a break to the defendant."

There are a variety of shades here and if they just go on a "rant," it very well could be over the top.

But, it need not just be a "rant." It can -- without reading the 55 page article -- a somewhat less rant-y complaint about the system. Which very well at times is unfair & they very well might at times have a valid reason to be upset.

Again, factoring in everything, it should not really be much "harder" for a judge to "justify" here. Whatever "images" are sent, there are basic things that factor into a reasonable sentence. The things regularly are not changed because the defendant rails to some degree at the system.

And, yeah, I think "punish" is in various cases a valid way to put it in at least some instances. Judge X surely sounds like a punish situation. Justices are human and I understand the sentiment. But, that is what it very well is in various cases. And, I think you can cite non-legal analogues of people "punishing" people for "ranting," when some more empathy and probably a fair accounting overall would show that is not deserved.

Posted by: Joe | Jul 26, 2021 7:53:11 PM

It's more that 55 pages ... that was another article. Ha.

Posted by: Joe | Jul 26, 2021 7:53:56 PM

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