Should a Defendant Speak at Sentencing?

As criminal defense attorneys, we have handled hundreds, if not thousands, of sentencing hearings. And, depending on the circumstances, we may choose to call our client to the stand to testify on their own behalf, or, in the alternative, may ask them not to say a single word. Why? Because each and every case is different. Outcomes are sometimes decided in advance. Sometimes there are times when hearing from the defendant is essential. So, when should a defendant speak at sentencing? Below are a few examples.

Will the Defendant Get a Chance to Speak?

Yet, before we get into specifics, it is important to remember that a defendant may get a chance to speak prior to sentencing. When? During a pre-sentence investigation, or PSI. On most felonies or pleas involving possible jail time, a judge may order a PSI. During the preparation of that report, the probation department may ask the defendant their opinion of the instant offense. Many defense attorneys will ask their clients not to give a statement in these interviews, electing to instead, offer their statement at the sentencing hearing — that’s because a lawyer can control things at a sentencing hearing much easier. Nevertheless, lawyers are often not present for PSI’s and this report can make or break a sentencing. As such, before you say anything in a PSI, make sure you and your attorney speak about the proper way to answer questions. Once the report is prepared and the judge reads the defendant’s answers, it is often hard to undo the damage prior to sentencing.

Set Term Pleas:

Most of the time, a sentencing hearing follows a guilty plea hearing where there are set terms, thus requiring no argument over the range of penalty or sanction to be imposed. In those circumstances, it rarely makes sense for a defendant to speak — unless the plea itself is so lenient there is a concern the court may not accept the plea. In those circumstances, hearing from the defendant may be a good idea.

Post-Conviction at Trial.

Depending on the circumstances, it may make sense to speak at a sentencing hearing following a trial. However, many times lawyers will opt not to have their clients speak post-trial. The reason for this choice is because if the case went to trial, the parties agreed that either there was a legal weakness in the case or the defendant declared their innocence. If you lose at trial, and you want to preserve your right to appeal successfully, many times lawyers will ask their clients not to make a statement at sentencing. Why? Because in an appeal, everything said at trial, pre-trial, and post-trial (including sentencing) is fair game to be considered. If someone speaks at the sentencing and accepts responsibility or apologies with too much specificity, that could be used against them later on appeal. However, there are limited ways a defendant can testify to show contrition without damaging a further appeal. It is essential lawyers and their clients have detailed conversations before deciding what to do in sentencing hearings post-trial.

Open-Term Pleas or Argued Sentences in Plea Agreements.

Often when there are parts of the plea where the parties are arguing over the outcome, it makes sense to let the defendant speak. Many times, defense attorneys will not call their clients to testify at these hearings, in fear that it opens their client up to cross-examination by the state. In those circumstances, the defense attorney may call other witnesses to address evidence they want the court to consider about their client without their client saying it themselves (i.e. work history, family support, character references, etc.). A way around the cross-examination concern is many defense attorneys will ask their clients to read a prepared statement, often called “allocution.” Allocution allows for a statement by the defendant, not subject to cross-examination (so long as nothing is said that is demonstrably false), and the defense can cater what is and more importantly what isn’t said — and a carefully crafted statement can be a game changer.

What Should and Shouldn’t be Said at Sentencing?

Things that should not be said: Remember, beyond words, the defendant’s demeanor is equally important at sentencing.

  1. If a defendant is going to allocate, the defendant should NEVER, and I mean, NEVER, speak off the cuff. There is too much concern for wandering off topic or saying things that could be more hurtful than helpful. If a defendant is to speak, it should be from a prepared, fully written letter, or, in the alternative, off a few carefully chosen bullet points (see below). Whichever the defendant chooses, it is essential that it be read or spoken with emotion and inflection. Otherwise the judge may tune out what is said.
  2. The defendant should NEVER, and I mean, NEVER, make excuses for their actions. Now is not the time for that. Their attorney can provide context for why things may have happened, but a defendant should never blame someone else or something else (i.e. alcohol, drugs, addiction, etc.) as the root for their bad deeds. A good defense attorney can weave this in without the defendant saying it.
  3. Finally, the sentencing should NEVER, and I mean, NEVER, be about how the case affects “me” or “I.” It should never focus on the damage the case has done to the defendant him or herself. Again, the defense attorney can make these arguments, but not the defendant. The focus is on making things right and the damage done to others.

 Things that should be said. Anything more than these 5 points can be harmful or self-indulgent.

  1. Accept full and complete responsibility (again, assuming you aren’t appealing)
  2. Make no excuses for the behavior or bad deed (again, assuming you aren’t appealing). The defendant should at some point combine point (1) and (2) by saying “I accept fully and complete responsibility without any excuse, because there is no excuse for my actions.” This limits the state’s ability to argue the contrary.
  3. Apologize to the victim first, the victim’s family, your family, the court, and the state of Indiana (in that order). Speak of letting people down and being embarrassed/ashamed of your actions (if you are appealing this can still be done if limited to things like, “although I maintain my innocence, I apologize that I was even in a position to be blamed for something such as this” …. or, simply “I apologize for your suffering and loss, etc.”)
  4. Briefly (very briefly) talk about the plans you have for the future (school, jobs, restitution — making the victim whole, helping others similarly situated, etc.)
  5. Ask the judge not to give up on you, not to throw the key away. Speak of being a productive member of society again.

Again, it is essential that you and your lawyer discuss these options and the circumstances behind whether or not it makes sense for you to speak. Many times, a defendant longs to speak and address the charges, but just as often their attorney may advise against it. If a statement makes sense, brevity and sincerity rule the roost. Should you or your family members face potential charges, give the experienced Indianapolis Criminal Defense Attorneys at Banks & Brower a call today at (317) 870-0019 or email us at info@banksbrower.com. We are available 24/7.