Who among us has not heard the authorities invoke some variation of “the lack of an explicit prohibition does not bar a prosecution”? To put it differently, says the authorities, “it is not okay only because no one told you it isn’t.” Often times a federal crimes lawyer can help you with more.
The prosecutor that was revolutionary succeeded in eliciting incriminating entries, upon which when imposing sentence, the sentencing judge quickly and expressly counted. Even though the defendant had suitably cabined his allocution to compunction and decrease, defense counsel failed to object to the cross examination or the judge’s reliance upon it.
On appeal, the authorities sought safety in the fact neither a rule nor binding precedent expressly says “no, prosecutors, it’s impossible to cross examine a defendant at allocution.” The authorities relied on this “but no one said I could not” evaluation to argue both that no mistake had happened, and that any mistake wasn’t “clear” (as required for reversal, with no objection below).
The circuit differed. It pointed out the aim of the “historical” right of allocution, enshrined in Fed. R. Crim. P. 32, is to “allow the defendant to discuss or present any advice to mitigate the sentence” – a goal that’s fatally undermined if allocution starts a defendant to cross examination. Allowing cross examination wasn’t only mistake, but error that is plain. (The circuit noted that the defendant who decides to testify about violation conduct at sentencing may achieve this, however only by taking the stand and therefore accepting the dangers of cross examination. Training suggestion: discourage your customers from carrying this out.)
As well as the circuit went one step further toward reminding the authorities that “no one said I could not” isn’t the limit of its duties. The circuit said even though the district court’s mistake are not clear, it could exercise its supervisory power to forbid cross examination at allocution.
The defense had assaulted the testimony of a crucial cooperating witness in the most common manner: by generating an admission the witness expected for leniency as a benefit because of his collaboration. The memoranda were acknowledged by the district court over a nonspecific objection by defense counsel. Feel free to talk our Sex offender lawyers.
The circuit agreed with the defense the admission of the non-testifying representative’s statements violated the Confrontation Clause. It remanded for resentencing as an outcome of the allocution infringement (rejecting another sentencing problem, related to how many casualties), although not for a fresh trial.
