Criminal Defense of Immigrants


§ 10.12 D. Preparing for Allocution

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The defendant is usually allowed to address the court directly at the time of sentence.  Even if the defendant does not ask to do so, the court will sometimes ask the defendant questions about the role in the offense, the current attitude toward the offense, and the like.  Especially if the court is considering a grant of probation, it may urge the defendant to take certain steps and observe the defendant’s response.  As Professor Amsterdam has recommended:


This is the time for the defendant to be penitent, entirely honest, and realistic in his or her aspirations and promises for the future.  Counsel can say anything that needs to be said about extenuating circumstances; that is not the client’s best foot to put forward at this stage.  The defendant can express affection for his or her family and appreciation for their commitment to help the defendant work out his or her problems if this is sincere and comes across convincingly.  When the client remains uncompromisingly persuaded of his or her innocence notwithstanding the verdict [or plea] or when s/he comes off as truculent or manipulative, s/he had best keep quiet. [39]


                In addition to the normal goals and dangers of using this procedure, the defendant must also avoid making factual admissions that can be used during immigration proceedings to trigger deportation, inadmissibility, or disqualification from relief.  The same three steps should be used here, as with the documentary materials, in an effort to maximize the sentence benefits, while minimizing immigration damage, from the defendant’s statements to the probation officer.  See § 10.10, supra.


                Counsel may wish to offer additional advice to the defendant concerning (a) the court’s procedure at sentence; (b) the fact (if true) that the defendant may withdraw the plea if the court fails to impose a certain sentence; (c) the right of allocution to address the court directly, and the wisdom of exercising this right; (d) the right to present evidence in mitigation of sentence, including the right (if applicable) to an evidentiary hearing; and (e) the right to appeal from the conviction or sentence, to the extent applicable.

[39] 3 A. Amsterdam, Trial Manual for the Defense of Criminal Cases [468] (1989).