CHICAGOLAWBULLETIN.COM
THURSDAY, MAY 8, 2014
®
Volume 160, No. 92
Allocution: Where word choice can
help or hurt a defendant’s case
K
evin Trudeau, as any
insomniac knows,
was a fixture on TV
infomercials for
years. Whatever your
problem — bad memory, obesity,
poor health — Trudeau had authored a book that provided the
solution.
But unfortunately for Trudeau,
he never wrote a book titled “How
to Avoid Legal Problems.” His
conviction in federal court in
Chicago last year for criminal contempt marked his third felony
conviction.
At his sentencing hearing on
March 17, the TV pitchman not
surprisingly took advantage of his
right of allocution, his right to
personally address the court before sentence was imposed. In
what the Chicago Tribune described as a “lengthy statement,”
Trudeau vowed that he would become a “better person” and
promised that if he ever wrote
another book, it would include “no
embellishment, no puffery and absolutely no lies.”
And what was the reaction of
U.S. District Judge Ronald A.
Guzman? The Tribune said the
“visibly irritated” judge “wasn’t
buying a word.” He went along
with the prosecutors’ request for
a 10-year sentence.
If allocution doesn’t work for a
professional performer, does it
work for anyone? This is the subject of Mark W. Bennett and Ira P.
Robbins’ new article “Last Words:
A Survey and Analysis of Federal
Judges’ Views of Allocution in
Sentencing,” 65 Alabama Law Review 735 (2014)(available for free
download at law.ua.edu/lawreview).
Allocution is defined in Black’s
Law Dictionary as an “unsworn
statement from a convicted defendant to the sentencing judge or
jury in which the defendant can
ask for mercy, explain his or her
conduct, apologize for the crime
or say anything else in an effort to
lessen the impending sentence.” It
can be found as far back as 1689
in England. Although not a constitutional right, it is specifically
provided for in Federal Rule of
Criminal Procedure 32(i)(4)(A)(ii).
(The Illinois analog is found at 730
political party of the president
ILCS 5/5-4-1(a)(6).)
who appointed a judge seemed to
CRIMINAL
Bennett and Robbins, a federal
have no significant effect on a
PROCEDURE
judge and law professor, respecjudge’s response to the survey.
tively, decided to conduct the
Second, they were disappointed
first-ever survey of federal judges
that 96.5 percent of the judges
regarding their views on allocunever warned defendants that
TIMOTHY P.
tion. They e-mailed a 32-question
their allocution could result in an
survey to all 953 federal district
increase, and not just a decrease,
O’NEILL
judges; 54.5 percent (519 judges)
in the sentence. They saw this as
responded.
a subject a defense attorney needTimothy P. O’Neill is a professor at The
They asked the judges to rank
ed to discuss seriously with a
John Marshall Law School. In 2012, he
from a list of 20 possible responsclient.
was awarded the Chicago Bar
es the five characteristics of alThird, they noted what they
Association’s Herman Kogan Meritorious
locutions that most impressed
called the “Goldilocks problem”:
Achievement Award for legal journalism.
them. The top five were “genuine
the difficulty of getting the alloReaders are invited to visit his Web log
remorse,” “sincerity,” “realistic
cution “just right” for any indiand archives at jmls.edu/oneill.
and concrete plans for the future,”
vidual judge. Ideally, a defense at“acknowledgement of and sincere
torney should be aware of — and
apology to the victims” and “unadvise his or her client about —
portant dissonance. Although
derstanding of the seriousness of
the tastes and preferences of the
more than 80 percent of the
the offense.” In fact, 178 of the
sentencing judge.
judges claimed to find that allojudges ranked “genuine remorse”
A fourth issue deals with the
cution was either “extremely,”
as the most important.
very nature of allocution. The un“very” or “somewhat” important,
On the other hand, the five
derlying assumption of the prothe actual results seem less imcharacteristics that least imcess is that a judge should be able
pressive.
pressed the judges were “explainto differentiate the sincerely reSeventy-eight percent responding how the defendant was the
morseful defendant from the one
ed that allocution “rarely” results
victim of circumstance,” “finding
who is “faking it.” But behavioral
in a lower sentence below the
religion,” “promising never to
psychologists uniformly believe
guidelines range; 62 percent said
commit another crime,” “saying ‘I
that people in general are not as
that it “rarely” results in a lower
can’t change the past’ or similar
adept at picking out liars as they
sentence even within the guidestatements” and “thanking the
believe they are. The authors thus
lines range. And, in a finding that
prosecutor and agent for arrestencourage judges to seek psychodefendants and their attorneys
ing and prosecuting the defenlogical training to improve their
should ponder, 2.8 percent of the
dant.”
skills in this area.
judges stated that allocution “freThe judges believed that deFinally, the authors found it
quently” results in a higher senfense attorneys have an important tence within the guidelines range.
troubling that although the judges
role in preparing
generally agreed
the defendant for
that the allocu(The
researchers)
were
disappointed
that
allocution. The
tion process re96.5 percent of the judges never warned
judges encourquired no
aged counsel to
changes, they aldefendants that their allocution could
advise their
so admitted that
clients to prepare
they relied more
result in an increase, and not just a
and rehearse, to
on the arguments
decrease,
in
the
sentence.
use their own
of the defense atwords and to be
torney rather
brief.
than the defendant’s allocution in
The nature of the crime apThe judges also offered some
arriving at a sentence. The aupears to have some impact on the
ideas on what detracts from an
thors believe this indicates that
effectiveness of allocution. The
allocution’s effectiveness. Among
there is substantial room for imjudges appeared most resistant to
the items some judges mentioned
provement within the allocution
lowering the sentences of certain
were a defendant not making eye
system.
child pornography crimes based
contact with the judge; reading
As for future studies, Bennett
on allocution; on the other hand,
from a prepared statement; and
they appeared more willing to use and Robbins emphasize that this
apologizing to his own family bestudy covers only federal courts.
allocution to lower sentences for
fore apologizing to the victims. On marijuana trafficking and whiteThe use of allocutions in state
the other hand, many other judges collar crimes.
courts is a largely unexplored
denied that any of these factors
frontier. Here’s hoping reThe authors had several reachad a negative impact.
searchers will soon turn their attions to the survey’s results. First,
The study does show some imtention to this important area.
they were pleased to find that the
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