As a Phoenix criminal defense attorney for the past three decades, I am frequently asked, “what do I say to the judge?”, or “how do I talk to the court?” In the world of criminal law, when the defendant addresses the court, that is called an allocution. It’s a statement that you make to the judge, and there are many ways this can go wrong. I would like to provide you some helpful information in the event you wish to make a statement to the Court.
Several years ago, I had a situation where my client elected to proceed to trial on drug-related sales charges. We were able to win on the “sales” charge and avoid mandatory prison. However, he still lost on lesser charges for possession. It is a long story, but in the trial, he was also charged with resisting arrest and assaulting the officer. The Jury did find him NOT guilty on those charges.
When it came time for his sentence, my client wanted to again defend his behavior, despite his acquittal. And, in wanting to “defend his honor,” he wanted to attack the officer during his allocution.
He still was protesting that the conviction was unfair, the jury didn’t know what they were doing, and all the other excuses the jury did not believe. But the bottom line is that he was to be sentenced for his first felony for possession over a pound of marijuana, NOT for sale.
I prepped him on how to address the court prior to sentencing. I told him he had three options, and these will be the same three options that you have when you need to speak to the judge:
In a situation where you know, you’re going to appeal your case because something is wrong, and you have a shot at winning down the road, my recommendation would be to say nothing. Anything you say at this point would likely do more harm than good.
You’ve already been convicted or plead guilty. If you are going to make an allocution statement to the court, take responsibility and be accountable. Owning what you were convicted for will play far better for you than denials, or belligerence.
You can say they jury was wrong, or the judge was wrong. You can blame others and deny your conduct, and you can continue to refuse to take responsibility and accountability in any way. However, this is something I always tell my clients not to do. After you are convicted or plead guilty, you should never blame your conviction on the judge, jury, or other people in court. This never helps you and it may make things worse for you.
In case you did not pick up on this above, I want to emphasize that blaming others, denials, dispersions, or attacking the judge or jury is not a good idea. Can you do it? Sure, but it is not wise. So, realistically, you only have two options; say nothing or make a true allocution to the court. As noted above, in the one case where this really blew up, my client was convicted of possessing over a pound of marijuana and felony flight. He was acquitted of resisting arrest, aggravated assault, and possession for sale. He was going to receive probation with nominal jail. However, he elected to not heed my advice. He elected Option #3. I have been practicing criminal defense for more than 30 years. This is one of a handful of times where my client elected to make a statement against my advice. In this case, the judge took a recess to consider his decision. And, rather than probation, the judge sent my first-time felony client to prison BECAUSE of his allocution. It was after that matter, that I provide my clients with a written memorandum of how to make an allocution.
Since option #1 is say nothing, there isn’t anything more that I can add except, if you and your criminal defense attorney have decided that you will not make a statement, then don’t.
However, if you are going to address a criminal court, there are several things that you should keep in mind, such as:
The court has seen and heard all these things before. Using cliches, giving a sappy, long-winded apology or focusing more on how the conviction will hurt you, won’t get you anywhere with the court.
If you are going to apologize, make it heartfelt and sincere, but not over the top. Just because you saw some guy do it on Law and Order, doesn’t mean it would be good for you to re-enact it in court. If you are going to apologize to the victim of the crime, make it from the heart. If you cannot make that sort of apology, don’t make any apology at all.
Narcissistic statements are statements that primarily focus on you. The intent behind them is usually to elicit sympathy from the court. An example of a narcissistic statement is saying something like, “I really want to see my daughter graduate from high school,” or “I really want to walk my daughter down the aisle.” Those are nice statements, but those are things you should have been thinking about at the time that you committed the offense. If you are going to make a statement, the court likes to see real remorse for the crime you committed, not remorse because you were caught. Focus on how you have had time to consider the wrongfulness of your conduct and what you are going to miss as a result of your poor choices. There is a difference between “I really want to see…” v. “My actions hurt others. As a result, I am (or I risk) never going to see my kids do (name your activity). I need to accept responsibility and will never go down that road again. I need to make the right choices, so I don’t lose the ability to do (name your activity).
The “I’ve seen the light,” or “I’ve seen the errors of my ways” speeches happen frequently when a defendant is trying to bargain for probation. Those types of speeches often come with the vow, “if you give probation, I guarantee you will never see me again,” or “I will talk to high school kids so that they won’t make the same mistakes I have made.”
When I hear these kinds of statements, I want to believe they are sincere and the defendant may be sincere at the time the statements are made, but the court has heard them so many times, they have become cliché. The court knows that you cannot help anyone else until you have helped yourself. You need to go through sentencing and counseling and do the things you need to do to fix yourself before anyone will take statements like this from you seriously.
A better approach would be to say you will accept the recommendations of probation, go to counseling, and abide by the rule of probation. Please see the section below on how to really set this argument out.
When it is time for you to make your statement, you need to remember that how you address the court is just as important as what you say in your statement. Consider these allocution statement tips:
There is really no time limit for your allocution statement, but short, concise, and sincere is usually best. Some statements are little more than 30 seconds long, but it can be 10 minutes long, it can be an hour-long, it can be until the court cuts you off. The longest one I recall was a client who went on for about 40 minutes. That is extremely rare. Most statements are between one and three minutes. You will be surprised how long that 3 minutes feels when you are making the statement. It’s a long time to talk.
When it comes to allocution statements, it is not a question of how long or how short it is, it’s a question of the quality and sincerity of the statement that you make.
You made a mistake, and you should own it, right? No. A mistake is 2 plus 2 equals 6. What landed you in this situation is a series of poor choices. There is a big difference between an innocent mistake and a series of poor choices that culminate in a criminal act. So, rather than speaking in terms of mistakes, speak to your poor choices and why you will not make those same choices again. Saying you made a mistake is an attempt to obscure the fact that you committed a criminal act, but saying it was a mistake isn’t fooling anybody. It makes you look like you do not fully accept responsibility for what was, in most cases, an intentional act. There are no good excuses, there are no good rationalizations. You just must be fully accountable.
As hard as it may be, being accountable is essentially saying, “I know I need to be punished, I’m looking to be punished fairly. I’m looking to understand why I did what I did, so I won’t do it again.” This would be a good time to say that the recommendation for counseling from probation would be helpful.
You can talk about how your actions are going to affect your family, your employment or other areas of your life and express remorse for making your family go through it, but don’t let the focus fall back on how you will suffer. Of course, a sincere apology to the victims of your crime would be appropriate as well.
Finally, you need to tell the judge that you don’t want to come back down this path again, but that single statement is not strong enough. You need to tell the judge I’m not going to go down this path again because I have this goal or these goals in mind. For example, you might say, Judge, when I’m released:
The more specific you are, the more inclined the judge will believe that you have a plan to get on the right track and stay there. If you just make generalized statements like, “I’ve learned my lesson, I won’t be back,” you will likely get an eye roll from the judge because he has heard that so many times before. Sitting down and thinking about your goals and steps to get there is hard work. The more you think about it, and the way you express it to the Court really matters.
Consider this the most important homework of your life. Even if you were terrible in school, you probably had at least one assignment that you poured everything into. This must be that assignment.
The more time that you put into crafting your allocution statement, the better it will be. You can write it out longhand or you can use a bullet point list on note cards. Just think it through.
To make it easier and better organized, break it up into sections. For example, you might use these sections:
If you click this link you can download a letter that I provide my clients to help them prepare their allocution statement. Together with this article and video, you should be well equipped to create a great statement.
Howard Snader at the Snader Law Group is a board-certified expert in criminal law. For more than 30 years Howard has helped thousands of people negotiate their way through the criminal justice system. If you have questions about making an allocution statement or another criminal matter, please give us a call or chat with a live person on our website. We are here to help.
