CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, July 24, 2008

Interesting Sentencing Hearings Due in California? A criminal defendant's right to address the judge before sentencing and plead for mercy without being cross-examined, a right traced back to 17th century England, doesn't exist in California, the state Supreme Court ruled today.

In a case from San Mateo County, the justices ruled unanimously that a defendant who is about to be sentenced must be treated like any other witness - testifying under oath and subject to cross-examination by the prosecutor - when asking for leniency.

The ruling upheld a five-year prison sentence for Blaine Allen Evans, who was convicted in 2004 of receiving stolen property - a drill that had been taken from a van in Belmont.

During the sentencing hearing, Evans' lawyer argued for probation and drug treatment but did not call his client as a witness. Superior Court Judge Robert Foiles denied probation and was about to pronounce sentence when Evans asked to speak. Foiles refused and sentenced him to prison.

Such a statement, known as allocution, is allowed by statute in federal court, and was authorized by a California appellate court in another case in 1994. The state's high court overturned that appellate ruling today and said Evans, even if he was willing to appear as a witness, had waited too long to make his request.

The court said the right of allocution dates back to 17th century English law, when most felonies were punished by death and defendants had no right to testify or be represented by a lawyer. English and U.S. courts adopted the practice for non-capital as well as capital cases by the 19th century, allowing defendants to approach the bench before sentencing and argue for leniency without being subject to questioning by the prosecutor.

But the court said California law, since statehood in 1850, has been worded narrowly to authorize only a defendant's statement about why the judge should not "pronounce judgment" - that is, formally declare the defendant's guilt.

The law doesn't guarantee the right to make a similar unsworn statement seeking leniency, Justice Joyce Kennard said in the court's ruling. She said a trial judge could still decide to allow such a statement, but only if the prosecutor agreed.

Kennard also noted that defendants can also make their case to the court's probation office, which submits a report to the judge before sentencing.

Read rest of article here. [Brooks Holland]

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