The majority of criminal cases result in a conviction for some offense. Many attorneys proceed to sentencing without really explaining the process to the client, or offering them any advice ( like a sample allocution statement) on how they should address the court.
Especially in those cases where the court has a range of sentencing available, I normally recommend my client make an allocution to the court. This is a defendant’s right: Ariz. R. Crim. P. 19.1(d)(7), 26.10(b)(1). An allocution is simply a formal speech. In the context of a criminal case, it is the one opportunity to humanize your client before the court and in many cases the prosecutor and victim as well.
When the court has a range of sentencing options, how the defendant addresses the court and personalizes the situation can make a substantial impact on the court’s thought process in reaching a “fair” sentence.
As I advise my clients when the court asks if they have anything to say at the time of sentencing, they can elect to say nothing. But, if they elect to make a statement, I have found the following information to be helpful:
In making an allocution, I believe there are a few do’s and don’ts. Simply stated, avoid clichés. The client should not be overly apologetic, narcissistic, or give an “I have seen the light” type of speech.
An example of the overly apologetic would be the general apology to the court, prosecutor, the victim, the court staff, etc., Any true apology must be a direct and heartfelt expression of regret and remorse. That expression must be expressed and directed to the victim, not expressed in terms of regret that they were caught committing an offense. The one caveat would be if the regret in being caught was a good thing, despite the pending punishment, because they can learn from their mistakes.
An example of the narcissistic statement is the typical stale and rote comment such as: “I really want to see my daughter graduate from high school,” or “I really want to walk her down the aisle.”
Those statements do not work because your client should have been thinking about those things as they were committing the offense.
An example of the “I have seen the light” speech is just that. Telling the court that you “have seen the light” or “If you give me probation, you will have my guarantee you will never see me again,” are meaningless. The court has no way to determine the truthfulness or sincerity of those comments.
When making an allocution, I do advise my clients to make their statements as long or short as they wish. It is not what they say, but how they say it. It is their only opportunity to speak to the court. Although I prefer their statement to be short and concise, it is their only time to make their feelings and thoughts known to the court.
A sincere apology is always appropriate. If it comes from the heart, everyone will know it. I advise clients to not hold back on their emotions: crying, etc. This makes them appear more sincere and contrite. It is appropriate for the client to be scared, nervous, humble, and contrite. Their future is literally in the hands of the judge.
The client may wish to read from a prepared letter or statement. If they have already provided a letter to the court, I would recommend only speaking to the court if they have something additional to add.
If they wish to read a prepared statement, I believe there are two ways to do it:
First, the client may wish to draft a letter to read to the court. Because clients may become nervous when addressing the court, I recommend skipping lines in their letter (double spaced,) so they will not lose their place on the page.
I personally prefer the client to prepare a statement using note cards, however. Their statement should be bullet-pointed by topic. When using this method, they do not write every word. Rather, they use their notes to keep focused while addressing the court. I believe this approach is more effective because it produces a more honest reflection of their thoughts and emotions.
Telling the court that they are “taking full responsibility,” has little meaning. I would not be surprised if a judge were to turn to my client one of these days and ask how they are taking full responsibility.
That is the true question the client must be prepared to address. Answering that question requires the client to make an affirmative, positive statement about their wrongful conduct. Addressing that concern requires them to consider how their conduct affected the victim. In many cases, the client will truly need to take time to reflect. As their counsel, you may need to work with them to mold their thought process and craft their statement.
Notice I have said nothing about excuses. There are no good excuses or rationalizations. Where the client has maintained their innocence, I believe silence is the best policy. Where the client has admitted guilt or was otherwise found guilty, however, they should not make excuses or blame anyone else.
The client must take responsibility. They should be prepared to state how they will correct their behavior. They should be as specific as possible in identifying what changes they will make, when, and how they will make them, and the timeframe in which these changes will occur.
Clients should be prepared to explain specifically and realistically their goals for the following year, as well as the next five years, and the long term. Again, this takes some honest, introspective, analysis. The more thoughtful and specific they are in their approach, the more effective their statement will be.
Preparing a client for their allocution takes time. However, I have found that it is time well spent. In many cases, I am able to obtain a sentence more lenient than expected. On a few occasions, the court and prosecutor have agreed to reduce the punishment otherwise set forth in the plea agreement.
