An allocution, or allocutus, is a formal statement made to the
court
A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in acco ...
by the
defendant
In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.
Terminology varies from one jurisd ...
who has been found
guilty prior to being sentenced. It is part of the
criminal procedure
Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail o ...
in some jurisdictions using
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...
.
Concept
An allocution allows the defendant to explain why the sentence should be lenient. In
plea bargain
A plea bargain (also plea agreement or plea deal) is an agreement in criminal law proceedings, whereby the prosecutor provides a concession to the defendant in exchange for a plea of guilt or ''nolo contendere.'' This may mean that the defendant ...
s, an allocution may be required of the defendant. The defendant explicitly admits specifically and in detail the actions and their reasons in exchange for a reduced sentence.
In principle, that removes any doubt as to the exact nature of the defendant's guilt in the matter.
The term "allocution" is used generally only in jurisdictions in the United States, but there are vaguely similar processes in other
common law countries. In many other jurisdictions, it is for the
defense lawyer to mitigate on their client's behalf, and the defendant rarely has the opportunity to speak.
The right of victims to speak at sentencing is also sometimes referred to as allocution.
Australia
In
Australia
Australia, officially the Commonwealth of Australia, is a sovereign country comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands. With an area of , Australia is the largest country by ...
, the term ''allocutus'' is used by the Clerk of Arraigns or another formal associate of the court. It is generally phrased as, "Prisoner at the Bar, you have been found Guilty by a
jury
A jury is a sworn body of people (jurors) convened to hear evidence and render an impartial verdict (a finding of fact on a question) officially submitted to them by a court, or to set a penalty or judgment.
Juries developed in England d ...
of your peers of the offense of XYZ. Do you have anything to say as to why the sentence of this Court should not now be passed upon you?" The
defense counsel
In a civil proceeding or criminal prosecution under the common law or under statute, a defendant may raise a defense (or defence) in an effort to avert civil liability or criminal conviction. A defense is put forward by a party to defeat ...
will then make a ''plea in mitigation'' (also called ''submissions on penalty'') in an attempt to mitigate the relative seriousness of the offense and heavily refer to and rely upon the defendant's previous good character and good works, if any.
The right to make a plea in mitigation is absolute. If a judge or magistrate refuses to hear such a plea or does not properly consider it, the sentence can be overturned on
appeal
In law, an appeal is the process in which cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and ...
.
United States
In most of the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...
, defendants are allowed the opportunity to allocute before a sentence is passed. Some jurisdictions hold that as an absolute right. In its absence, a sentence but not the conviction may be overturned, resulting in the need for a new sentencing hearing. In the federal system,
Federal Rules of Criminal Procedure The Federal Rules of Criminal Procedure are the procedural rules that govern how federal criminal prosecutions are conducted in United States district courts and the general trial courts of the U.S. government. They are the companion to the Federa ...
32(i)(4) provides that the court must "address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence."
The
federal public defender recommends that defendants speak in terms of how a lenient sentence will be sufficient but not greater than necessary to comply with the statutory directives set forth in .
See also
*
Confession (law)
In the law of criminal evidence, a confession is a statement by a suspect in crime which is adverse to that person. Some secondary authorities, such as Black's Law Dictionary, define a confession in more narrow terms, ''e.g.'' as "a statement adm ...
References
{{wiktionary
Criminal procedure
Evidence law