Bill Long 10/25/04
Allocution in Law
I said in my subtitle of the previous mini-essay that allocution is something that only the Pope and a murderer have in common. Now I need to flesh out that statement by considering what the right of allocution was or is at law. It is among the oldest rights known to the common law, but it has only recently been rediscovered. This mini-essay tries to tell the story of allocution in law.
Criminal Procedure 101
We in America are heirs of the common law tradition of English law. The "common law" means law that was made by judges, inherited from time immemorial through unwritten custom and made more precise through statutory formulation. The growth of the common law happened over 700 or so years, and when the colonists declared themselves independent from Britain in 1776, one of the major problems for each colony/state would be to define the nature of the common law's continued influence in their state's life. Each colony then, beginning in 1776, passed a "reception statute," that took up, in whole or part, the vast inheritance of the English common law in that new jurisdiction.
In medieval/early modern criminal law, in the common law system, the defendant was disabled from testifying for himself at trial. Perhaps because of the realization that such a defendant was a very "interested" party as well as the resulting incentive to perjure himself, this was not permitted. Blackstone, the great expositor of the common law, says, "All witnesses, of whatever religion or country, that have the use of their reason, are to be received and examined, except such as are infamous, or such as are interested in the event of the cause."
Another Right in its Place
Even though criminal defendants were not permitted to offer sworn testimony for themselves, they were not completely divested of the ability to be heard. In a right that seems very strange to us today, a criminal defendant could present evidence, offer his view of the facts, and make a legal argument to try to persuade the trier of fact (either judge or jury) of his innocence or of a lesser punishment. This was the right of allocution. This broad statement needs qualification, of course, so let's turn to the two authorities on the common law to understand the scope of the right.
In fact Blackstone will not be our best authority, even though I will cite him first. His magisterial tomes were probably the last word in what one might call the law of private rights, but not public rights. In any case, he says:
"For when, upon a capital charge, the jury have brought in their verdict, guilty, in the presence of the prisoner; he is either immediately, or at a convenient time soon after, asked by the court, if he has anything to offer why judgment should not be awarded against him." This is the right of allocution.
We learn a few things from Blackstone. First, allocution is where the defendant is "spoken to" and asked if he has a statement to make. Second, it is between verdict and sentence in a criminal case. Third, it is in a capital case. Fourth (though this isn't expressly said), the defendant is not sworn when he makes the statement, nor is it subject to cross-examination or impeachment. One gets the impression that the right of allocution substituted for the lack of a right to appear as a witness in one's own defense.
Probably the most famous authority on criminal law in the common law system was Joseph Chitty. Writing shortly after Blackstone, Chitty commented:
"It is now indispensably necessary, even in clergyable felonies, that the defendant should be asked by the clerk if he has anything to say why judgment of death should not be pronounced on him; and it is material that this appear upon record to have been done; and its omission, after judgment in high treason, will be a sufficient ground for the reversal of the attainder."
Wow. Chitty brings a note of precision that even the normally very precise Blackstone lacks. Now the right of allocution is an indispensable right; the clerk (rather than judge) asks the defendant to speak; a record of its being done needs to be entered; and failure to do so will be grounds for the "reversal of the attainder," which does not mean a reversal of sentence (because that might be carried out summarily), but of the "corruption of blood" [Yikes, another huge concept, which I may get to some day!] that may fall to his heirs as a result of his sentence.
Fast Forward to Today
Obviously, criminal defendants can be witnesses in their own defense today. The early state constitutions from 1776-1782 grant this right, though even this statement invites further essays (as to when the right was granted and how this related to the right of allocution). So, for a long time the two rights were sort of in conflict with each other. The defendant could now testify under oath on his own behalf, but what did that mean for the long-standing right of allocution, an unsworn statement that was no subject to cross-examination? In a nutshell, the right of allocution seemed to have waned.
Until recently. Oregon is one jurisdiction that is fast rediscovering and reasserting the common law right of allocution for a criminal defendant who has been found guilty of aggravated murder. Oregon has decided to do it because it believes that all rights existing at the time of the ratification of the state constitution in 1859 should exist today, and that the original constitutional provision (Article 1, sec. 11 of the Oregon Constitution) which allowed a person to "have the right...to be heard by himself" allows such a practice. But the scope and extent of the right is still unclear.
So, we are digging deeply into the common law heritage to recover a right that we thought had long disappeared. Criminal defendants' rights to allocution today may rest, however, only on their state constitutions, since the United States Supreme Court has never found such a right in the federal constitution. Nevertheless, it adds a nice coda to our discussion of a word that most do not know even exists.
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