03 October 2006

Here's an Interesting Question

Everywhere I've practiced a defendant gets to say his piece to the judge before he is sentenced. He does this after the prosecution and defense cases have been completed and without cross examination.

So what happens in States where juries sentence? I pretty much guarantee that he doesn't get to talk to the jury without cross examination anywhere. The question becomes - should he?


Daniel said...

It’s hard to imagine the emotion of a juror listening to a speech from someone whom they’ve just decided committed murder. It’s even harder to gauge the effect of such a one sided rendition of the defendant’s nature. Judges are more accustomed to hearing these sorts of spills about the essential good nature of even those that commit terrible acts. Thus, Judges are less likely to be emotionally or unduly swayed by a tear jerking version of how a lowly person got to their lowly position. On the other hand, a jury with limited experience in these areas may be extraordinarily swayed, depending on the charisma and likeability of the talker. Without a cross examination, the impressionable jury would have their mind filled with un-filtered, obviously biased emotional pleas. And this would corrupt their sentencing decision.

Ken Lammers said...

But how's that different from victim impact testimony?

Daniel said...

Unlike victim impact statements where the incident of impact has been proven, there is no way to prove the facts of the defendant’s statements without cross. The victim impact statement is an account of the affect of something the court has proved happened. The defendant’s statement may be full of background that is impossible to confirm or believe without cross. Here, I think I am envisioning muddy stories about a tormented childhood and all the tough brakes in-between then and the crime. Now, I imagine often times these tales are true…but how do we know? Again, I think it comes down to a Judge having the experience necessary to filter these things out. A jury is not so experienced, so a defendant explaining all the supposed horrors of their lives could be flat out lying.

KyProsecutor said...

In Kentucky juries do sentence but the sentence is a recommendation that the judge may go below but not above (though our judges usually follow the juries sentences).

The defendant then gets the opportunity to speak in the sentencing phase with the jury (and have me cross-exam him if I choose) and to speak later in front of the judge who for final sentencing.