Getting the Last Word In: Risks and Rewards of Speech

More than 90 percent of federal criminal convictions arise from a plea deal. Consequently, for almost every convicted defendant, the sole opportunity to address the court and share his or her story comes during the allocution phase at sentencing. Allocution (unlike the guilty plea colloquy) offers a chance to humanize the defendant, yet many defense lawyers may not adequately prepare their clients for this potentially important moment. This article will explore the legal framework relating to allocution as well as some strategies defense counsel should consider at sentencing in white-collar cases.

Federal Rule of Criminal Procedure 32

Allocution dates back at least to 1689 when English courts first held that a defendant in a capital case had a right to be heard before punishment was imposed. In the United States, although speech was not guaranteed in the Constitution, the practice historically found widespread acceptance in state and federal courts and was formally codified by Congress in 1944 in the Federal Rules of Criminal Procedure.