The Apology - What To Say At Sentencing In A Colorado Criminal Case

How to Speak to the Judge at Sentencing

A Denver Colorado Criminal Lawyer Explains How To Apologize at A Criminal Court Sentencing

By H. Michael Steinberg - Colorado Criminal Defense Lawyer

"Who understands his sins?" He throws up his analytical hands and exclaims, "who can untie this extremely twisted and tangled knot?" - Augustine

Bryan H. Ward, A Plea Best Not Taken

Why Criminal Defendants Should Avoid the Alford Plea, 68 MO.L.REV. 913, 921 n.43 (2003)

Time of Desperation: An Examination of Criminal Defendants’ Experiences of Allocuting at Sentencing Joshua Burger-Caplan

Columbia Law Review - an excerpt from an actual interview with defendants after sentencing

And your lawyer didn’t spend any time, you know, talking about —other than just to say this is a time to express remorse‘ —didn’t spend any time going over what....?

Not at all. Not at all.... And the irony is, I had a paid attorney. So I could imagine all the individuals who just have a legal aid who‘s overworked and overwhelmed and so forth, and rarely have time —rarely have time —to explain the details and the significance....?

Yeah, so I had a public defender, so they don‘t ...He’s just like, - What are you going to say?? They just ask what you‘re going to say, make sure you don‘t say anything stupid. That‘s it.?

The Origin Of The Right To Allocute At Sentencing Has A Deep History - Colorado Rule Of Criminal Procedure - Rule 32

Under Colorado law, the right to “allocute” (to speak at sentencing) historically is a right that runs very deep in our state’s jurisprudence.

Rule 32 of the Colorado Rules of Criminal Procedure: Sentence and Judgment

(1) Sentence shall be imposed without unreasonable delay. Before imposing sentence, the court shall afford the defendant an opportunity to make a statement in his or her own behalf, and to present any information in mitigation of punishment. The state also shall be given an opportunity to be heard on any matter material to the imposition of sentence.

CRCP Rule 32 is almost always enforced procedurally at the very end of every sentencing hearing after all of the other arguments and speeches have been completed by the lawyers and witnesses. It is at that moment that the judge turns to the defendant and asks the question typically phrased, “Mr. Smith, do you have anything to say to the Court?”

Allocution is not subject to cross examination by the prosecutor.

When the defendant is given the opportunity to explain his or her views of the facts and circumstances, the purpose of the right of allocution has been accomplished. The underlying purpose of allocution is undermined when a defendant’s statement is put up against the rigors of cross-examination.

Allocution is further defined as an unsworn, informal statement from the defendant to the sentencing judge in which the defendant can ask for mercy in an effort to lessen the impending sentence.

If the sentence in a Colorado criminal case is an “open sentence,” or a sentence where the judge has discretion to impose a punitive sanction such as jail or prison, it is at this critical juncture that a defendant must deliver carefully prepared remarks.

It is not the time for the extemporaneous unprepared thinking.

Allocution at sentencing is not a time to make weak excuses for poor conduct. Stiffly read statements written by defense lawyers are easily spotted .... as is the opposite, a heartfelt display emotion and empathy in the delivery of the apology.

Judges can and will quickly gauge sincerity and true ownership of responsibility. They can gauge the opposite as well - a complete lack of accountability, the minimization of the impact of their acts on the victims of their crimes, the blaming of others for their conduct, the denial of the crime, and a contemptuousness of the process itself. Lack of preparation can sew the elements of a disastrous result at a Colorado criminal sentencing hearing.

A Federal Judge On The Sentencing Decision

“Who Appointed Me God?” Reflections of a Judge on Criminal Sentencing

  • “Early on, I felt the eyes of the courtroom on me and would start to pronounce a sentence before I was really sure what I was going to say. I have gotten over that. I always take at least a few minutes after presentations have closed to gather my thoughts and sometimes longer. If I need to take a recess, I do. In the rare case, I will continue the sentencing until another day so that I can give the matter more thought or perhaps research an issue as to which I am uncertain.
  • Once you pronounce a sentence, that is it for all time. Don’t rush.”
  • “No matter how long we have done it, we can never forget what an awesome responsibility it is to decide whether and for how long to deprive someone of their liberty. We also must remember our duty to those affected by the sentencing, to the general public, and to the cause of justice, to do everything we can to get it right.”
  • - Timothy J. Corrigan (U.S. District Judge for the Middle District of Florida).
  • JUDICATURE - The Duke Law Center for Judicial Studies. 32 VOL100 NO. 3
What Is An Apology?

The word "apology" derives from the Greek root logos, meaning "speech" or "word." The term describes a formal justification, a defense, or an explanation following an injury. An apology is an acknowledgment intended to act as an atonement for some improper or injurious remark or act. It is an admission to another of a wrong done to that person accompanied by an expression of regret.

Let’s be clear, apologies are hard, and they are especially hard when facing the serious consequences that can await a defendant at a criminal case sentencing hearing.

An apology in this context challenges the person convicted to be humble, to accept responsibility for their crimes, to express true remorse in a direct, personal, and unambiguous manner, and to promise to try everything possible to heal the wounds that were the result of that defendant’s crimes.

Sympathy Is Not Empathy

Expressing sympathy is not the same as a heartfelt and empathetic apology. Sympathy is an emotion that is a component of pity and it does not go far enough for these purposes. Empathy means to appreciate, understand, and accept the pain another person feels. Empathy, as a component of an apology, means the ability to feel another’s suffering, not just intellectually comprehend that pain. It is an attempt to experience the victim’s sorrow - their hurt.

Expressing authentic empathy in the context of an apology at a criminal court sentencing means hard work. It is not only difficult to craft such an apology, it becomes a burden that the average defendant may try to avoid.

Should You Apologize At Your Sentencing Hearing?

“The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.”

Green v. United States, 365 U.S. 301, 304 (1961).

A great deal of research has been done into the question of the actual impact of apologies in criminal case sentencing hearings. This Author’s take, after almost 40 years of handling criminal sentencing matters both as a “career” District Attorney in Arapahoe County for 13 years and a Defense Lawyer for over 21 years - is simple: apologies, if sincere, can and do have a tremendous impact on all those involved- most importantly, the judge who will impose the sentence.

I write this article to try to assist others in understanding the complexity of constructing and conveying a sincere expression of remorse at the sentencing stage of a Colorado criminal case.

Remorse And The Fake Apology

The Oxford English Dictionary defines remorse as “a feeling of compunction, or of deep regret and repentance, for a sin or wrong committed.”

Remorse that is persuasively expressed by a defendant plays an important role in a Colorado judge’s decision at sentencing. On the other hand, a perceived fake apology, poorly expressed at sentencing will often backfire and actually enrage a judge.

Judges are well trained to spot the liar. Most judges will see through an insincere apology offered out of a fear of a punitive sentence. They can easily differentiate it from a true and obviously sincere expression of remorse.

Judges are in the “credibility business.”

Why A Defendant Should Speak At Sentencing - When The Victim Speaks At Sentencing And The Defendant Does Not - The Impact Can Be Devastating To The Defense

When the judge offers the invitation to allocute at sentencing to the unprepared defendant, it is a potential trap. The invitation to “speak freely” can be disastrous, as demonstrated below. Judges, maybe even unknowingly, penalize those defendants who fail to express remorse in the way that the judge expects it to be expressed.

The victim of a crime is often hurt and very angry. The criminal justice system has very intentionally separated the parties since the start of the case. The system is set up as adversarial and the parties naturally view the process as a zero-sum game - one winner, one loser.

Victims harmed by the crimes of another view the offender as an adversary - the enemy of truth. Conversely, the offender (understandably) reacts from their own fears with open hostility toward the injured party. These expressions are almost palpable at the sentencing hearing. This paradigm goes round and round until sentencing.

When only the victim or victim-related witnesses speak at sentencing, there is no counterbalancing of the negative emotion from the State’s presentation of aggravating facts by the district attorney. A judge may be moved to anger, and likely will impose a sentence that reflects the human impact of the crimes on the victim and the victim’s family.

This kind of sentencing hearing demands that the defendant be heard in order to add “balance” to the hearing, and that the defendant use that time to sincerely apologize for the crimes committed and the impacts of those crimes.

Criminal Sentencing Presentations Are An Area Of Criminal Law That Is More Of An Art Than A Science

Understanding The Integrated Parts of a Sentencing Speech

Sentencing statements can be divided into four essential areas.

These include:

  1. The Statement,
  2. Nonverbal Messages from the Defendant,
  3. The Defendant’s Attitude and Demeanor,
  4. The Defendant’s Other Actions or Conduct and Any Corroborating Information from Other Sources.

1. The Statement

A defendant must strive to go beyond reading the classic “rote remorse" statement that has been written by his or her lawyer. The generic "I am sorry about what happened" statement by the defendant is interpreted by all participants as a method of distancing himself or herself from their crimes. It is often perceived as insincere.

In short, language matters.

The written apology read with the kind of nonverbal body language of “let’s just get through this” is not only ineffective, it may possibly lead to a harsher sentence.

Below is an example of the deconstruction of an apology statement into its basic structure and components. For the purposes of this section, it is important to point out that the statement itself must be well-written, practiced, but not memorized, and then delivered with the kind of facial expressions and other nonverbal cues that convey sincerity.

It is understandable that defendants today see the criminal justice as a harsh and biased system of prosecution. Often, defendants feel “railroaded.” They view a communication of submission and obedience, invisibility in the system, and silence in the face of punishment as a tacit acceptance of blame. It is not enough to feel these things. The defendant must prepare their case at sentencing.

2. Nonverbal Messages From the Defendant Are Critically Important

Humans convey so much more information nonverbally than in our spoken words. If at the sentencing hearing, the nonverbal cues do not match the words spoken - the judge will likely rely solely on demeanor evidence and ignore the actual spoken apology. Studies on the complex topic of nonverbal communication have found that 70 to 93 percent of all communication is nonverbal. The hallmark of authenticity in the courtroom is a spoken apology coupled with convincing nonverbal behavior. Clearly there are vast differences in our styles of communication. Some of us refuse to express emotion, based on the need to appear dignified and strong. Others express their feelings of remorse through tears, hanging their head in a dejected manner.

For the defendant in a criminal sentencing hearing - this area is rife with danger.

There are some indisputably “bad” and somewhat dangerous facial expressions. These include the angry defendant who leers or sneers at his or her audience or takes on an intractable stone face. Another problematic defendant refuses to make eye contact, or constantly moves around and fidgets - not paying attention to the State’s case or the judge’s words.

A judge wants to see the defendant’s actions and facial expressions align with their words of the apology.

The Problem of the “Stone Faced” Defendant - Incapable of Expressions of Empathy

We all handle fear differently. A serious problem for a criminal defense lawyer is the defendant who, attempting to cope with the fear of a jail or prison sentence, freezes up. His misread countenance, “stone face,” expressing no emotion at the sentencing hearing, may be misread by the judge as a person who feels nothing for anyone.

For some, an impassive mask, is an attempt to appear more “adult.” The difficulty for this defendant is facing the near impossible task of expressing deep feelings without leading the judge to the wrong conclusion - he is “faking” it. A remark to these defendants - it is important to understand that this is not the time for stoicism and some misguided attempt at bravery.

The lawyer’s job in this instance, if they fail at turning this situation around, is to convince the judge that the defendant’s impassive countenance is actually a protective mask which hides the defendant’s true feelings of remorse and empathy.

Some Thoughts On Body Language

  • Vocal Tone - should be even and tempered.
  • All Fidgeting - should be kept to a minimum.
  • Facial Expressions - should be checked and as natural and as sincere as is possible.
  • Head Movements - should be controlled - for example never shake your head “no” when the other side is speaking - and never shake “no” when you mean “yes.”
  • Hand Gestures - there should not be any wild gesticulating or a frenzied waiving of the hands.
  • Overall Body Posture - stand straight up - forthright, never appearing slumped, weak or defeated.

3. Attitude or Demeanor

Respect for the judicial process, for a judge’s staff, for the district attorney, even the sheriffs in the courtroom, is essential to obtain a good result at sentencing. Judges view a forthright disposition, a calm, respectful and appropriate demeanor as being consistent with remorse.

4. The Defendant’s Other Actions or Conduct and Any Corroborating Information from Other Sources

Information corroborative of rehabilitation and remorse at sentencing can be presented from several different sources. These include witness surrogates, such as family members, friends, clergy, sponsors from Alcoholics Anonymous or Narcotics Anonymous, sports coaches, teachers ... anyone who may potentially influence the judge's belief or disbelief in the defendant's honesty.

Judges assess a defendant at sentencing from every possible point of view. Judges consider a totality of the facts and circumstances that form a composite of who the defendant is and who he or she may become. Preemptive actions such as starting therapy early, taking classes in anger management, alcohol and drug treatment, parenting classes, charitable acts, useful public service, all mean one thing - this defendant is ”walking the walk” rather than simply “talking the talk.”

Mitigating Information Should Only Come From The Defense Lawyer And Other Witnesses

A “golden rule” of sentencing: all mitigating information which explains how or why a crime occurred, should exclusively come from the defense lawyer’s mouth, or witnesses speaking on behalf of the defendant and not from the defendant.

A "rotten childhood" argument, which helps to explain a crime and aims therefore to “mitigate” or lessen the punishment, if spoken by the defendant, may be interpreted as a failure to take responsibility for that defendant’s actions in a transparent attempt to avoid punishment.

A defendants' direct plea for mercy or leniency based on difficulties in their lives is perceived as an effort to minimize the impact of his or her crimes.

Other studies have shown this contra-intuitive, but important, general rule: when a defendant condemns himself, takes complete responsibility, and even aligns himself with the District Attorney by agreeing that he deserves whatever punishment the Court imposes - as frightening as this may be - the defendant usually receives the best result.

An example:

“I fully accept and take complete responsibility for my actions without any excuse because there is no excuse for my actions.”

(How can a District Attorney argue against this statement?)

The defendant should never address the mitigating details of the crime such as factual elements that establish a shared responsibility for what happened with the acts of the victim. The tragic circumstances in their lives explaining why they committed their crimes should be explained by those who know them best. If these kinds of statements are made by the defendant, the unmistakable impression on the sentencing judge is that the defendant is seeking to defend his or her crimes and not taking full responsibility for those acts.

In other words - because this is important to stress - when a defendant deviates from the clear task of expressing total accountability and remorse for his or her crimes the result is ambiguity about the very sincerity of his or her remorse for the commission of the crimes. The goal should be to avoid any ambiguity.

Only the criminal defense lawyer should attempt to provide the context for why a crime may have happened. The defendant should never blame someone else or something else such as a tough life, mental health issues, or an addiction to alcohol or drugs, as the reason they may have committed a crime.

The Construction Of the Apology - The Creation of an Effective Apology at Sentencing - Part 1

The Procedure To Be Followed With The Criminal Defense Lawyer In The Construction Of The Sentencing Statement

It is a lawyer’s duty to guide their client (the defendant) carefully through this process of constructing the sentencing statement. Clearly, there is an art to presenting a sentencing statement. Criminal defense lawyers should consciously develop and hone this skill, and then use that experience to help their clients.

The Process

First - the client (defendant) should work closely with his or her lawyer. While lawyers may differ in the way they prepare their clients for sentencing, a clear and well-defined process will help the defendant understand the challenge ahead.

Second - each draft of the sentencing speech should be written out and addressed to the lawyer. These early drafts should be expansive at first, the defendant should feel free to write in a stream of consciousness format, letting ideas flow. Later, the statement can and should be edited several times applying common sense and perhaps some of the ideas in this article.

Third - the client (defendant) should never ask the lawyer to write the statement. The apology must sound authentic and come from the defendant themselves. The final statement should no more than be a page and a half, if possible.

Fourth - the client (defendant) should never speak extemporaneously - “from the hip.” The danger of wandering off topic or flowing into areas that could end up causing damage to the goal of sentencing are very real (especially if nerves kick in).

Fifth - the client (defendant) should practice the statement - but not memorize it. The defendant needs to strike a balance between knowing exactly what they want to say, but also maintaining a lack of comfort with the speech that makes the delivery genuine and not overly rehearsed. The defendant needs to be a little “off their game”- summoning up the courage to move forward with this difficult task is what the judge should see in the courtroom.

Sixth -The statement be short and kept simple. A statement to the Court should be clearly written, direct in its approach, easy to read and understand, and never rushed.

The Construction Of the Apology - The Creation of an Effective Apology at Sentencing Part 2

An allocution statement can be further reduced into three primary elements that need to be included the statement:

  • Admitting fault, (identifying what the crime was and accepting responsibility for the conduct).
  • Expressing regret for the crime or crimes, (expressing an understanding of the crimes committed).
  • Expressing empathy for any injury to the victim.

What Can Be Taken From The Principles Of Restorative Justice?

One way to help design and draft a persuasive sentencing speech is to answer the questions of restorative justice - a relatively new movement within the criminal justice system.

The foundational principles of restorative justice can be summarized as follows:

  • Restorative Justice is a different way of thinking about crime and our response to crime.
  • Restorative Justice focuses on repairing the harm caused by crime and reducing future harm through crime prevention.
  • Restorative Justice requires offenders to take responsibility for their actions and for the harm they have caused. It seeks redress for victims, recompense by offenders and reintegration of both within the community.

Some Questions Asked By The Restorative Justice Movement

  • How did the victims feel at the time of the crime?
  • How do they feel now? How have the defendant’s past actions affected them?
  • As a result of the defendant’s crimes, will the victims continue to suffer in the future, and, if so, how will they suffer? Can the defendant do or say anything that will help lessen their pain in any way?
  • When the defendant addresses the victim’s feelings, what words should he or she use about their suffering- about how the victims feel now, and how they will face their future challenges as a result of the defendant’s crimes?

A Client’s Recent Responses To The Restorative Justice Questionnaire:

In a recent, very serious case this Author handled, the Colorado Restorative Justice questions asked of my client in their pre-sentence interview were answered very sincerely, and therefore effectively. Below are the answers provided by my client (with permission from my client, of course).

Concerning Restorative Justice Measures

Who was (were) were the victim(s) in your case?

"The victims in this case would have been the girl and her family. My family is also victims as well as the community for my bad decisions."

What harm do you believe you caused when you committed this crime?

"I believe I caused harm to everyone including myself. Harm to a young girl that could ruin her childhood and her family. Harm that would change their lives forever. Harm to my family and our everyday life."

What kind of long term effects do you think the victim(s) or the community will experience as a result of your actions?

"Long term effects would be the help they would need to move forward in life after going through what I have done. Also the life changes that would have to be made to deal with the pain and harm I've caused."

If someone committed this crime against you or in your community, how would you feel?

"I would feel upset and helpless and would hope they get help."

How do you think you could repair the harm you caused?

"Not sure it could be repaired, but getting help and taking responsibility for what was done."

What steps would you be willing to take to repair the harm you caused the victim or the community?

"I would take any steps needed to repair what I've done."

What would you like the judge to know about you before you are sentenced?

"I take full responsibility for what I have done and apologize to her, the court and most of all the victims in this case. I would like to fix this in any way I can."

Examples Of Actual Criminal Apologies From Different Sources

Example 1:

“It is with a great amount of shame that I stand before you and tell you that I have betrayed your trust. I want all of you to know that today I plead guilty to two counts of making false statements to federal agents.

I have let them down. I have let my country down. And I have let myself down. I recognize that by saying that I'm deeply sorry, it might not be enough and sufficient to address the pain and the hurt that I have caused you. Therefore, I want to ask for your forgiveness for my actions, and I hope you can find it in your heart to forgive me.”

Marion Jones-Thompson – Apology Address for Making False Statements and for Illegal Steroid Use

Example 2:

“Your Honor, I'm deeply sorry, and filled with remorse. Through my therapy, I now know about cognitive distortions, and have real empathy for the victims. When I think back to how I gratified myself by watching those videos, and how I spoke to the police officers.

I am deeply ashamed. I am also very sorry to my family and friends for the embarrassment, shame, and hardship my actions have caused them. I betrayed my wife, let down my parents, and failed my children.

I have been attending Dr. (x) groups for 14 months. I learned a lot about myself, why I did what I did, and am confident I am now on the right path.

I know it will take a long time to rebuild the trust I have shattered, but I am determined. Ten months ago I made a very bad decision that has affected the lives of everyone close to me. My actions have resulted in great pain to [the complainant].

I apologized to her ten months ago, and I apologize to her again today. I did not mean to hurt her or to betray her.

I am sorry.”

From a client of Toronto Criminal Defense Lawyer Craig Penney

How NOT To Apologize At Sentencing - What NOT To Say

The Defendant Should Never Protest Their Innocence At Sentencing

Allocution is not the time to protest innocence. The defendant has pleaded guilty. The judge believes the defendant has accepted responsibility for having committed the crime. Defendants who state they are innocent - even when there may be some small truth to the statement - risk receiving a heavier sentence for a failure to accept responsibility.

The statement “I didn’t do it, but I agreed to plead guilty because I had no choice,” not only places the plea agreement in jeopardy of being rejected by the judge, it almost always means the judge will impose the most severe sentence allowable by law.

A Defendant Should Never Make Excuses At Sentencing

This is the rule - it is absolute. A defendant at sentencing should NEVER make excuses for their crimes, as noted above. If there are elements of mitigation for the crimes, that information should be presented by the criminal defense lawyer or witnesses called by the defense at sentencing.

The Defendant Should Never Blame Others - Always Accept Full Responsibility For Their Acts

This is a real problem. It is critically important to NEVER, EVER blame the victims of the crime. There is no question that this is a natural reaction to the often gut-wrenching statements made by the victim and their witnesses at sentencing, but an angry and defensive reaction from the defendant, especially when seeking leniency from the judge, is always perceived as inappropriate.

Never Challenge the Case or the Evidence.

If you have accepted a plea bargain, challenging the evidence may result in the judge rejecting the plea and setting the case for trial. This may be exactly what the defendant wants, and if so, fine. However, if the goal is settlement with the best result, this is not the time to challenge the State’s case. The criminal defense lawyer can and may decide to point out these issues - but never the defendant.

It Is Not About The Defendant At Sentencing It is About The Victims Of The Crimes

A sentencing hearing should focus on remorse, accountability, and empathy for the victim. The defendant who is about to be sentenced should never focus on themselves or their families as a reason for leniency. Again, that kind of mitigation information should come from the lawyers and or the witnesses called for the defense’s case.

If a defendant wishes to talk about themselves, what is appropriate is only briefly addressing the defendant’s future plans relating to rehabilitation efforts, attending high school GED program, college, a new job or career, and the like. Essentially, what the defendant plans to contribute to society during or after their sentence is served.

A Defendant Should Never Criticize Or Argue With The Judge At Sentencing

This should be obvious, but must be said.

Judges will sometimes take the time to lecture the defendant about the judge’s perception of the crimes. Judges do this for many reasons. There will be times when the judge is deciding what to do and is visually making up his or her mind.

It is natural for a defendant to bristle at these times to want to defend against the statements of the Court (judge). That approach is almost always a disaster. Often the judge is “working both sides of the case” and making a real-time decision about what the sentence will be. The defendant’s interruption can lead to a harsher punitive sentence when the judge perceives a lack of honesty in the words just spoken by the defendant and the lawyer (as well as the disrespect).

If the judge says something very important that is untrue, and the lawyer has not caught it - a gentle nudge at your lawyer and a whisper may be enough to have the lawyer carefully correct the Court - nothing more.

A Defendant Should Be Prepared To Answer The Rare Questions Asked By The Sentencing Judge

While this is very rare, the defendant should be prepared for questions from the judge. If the defendant is confused on how to answer, and the issue is important enough, the defendant should whisper to their lawyer. The lawyer can even ask the Court for a brief recess to discuss an appropriate response.

A Defendant Should Never Try For Sympathy At Sentencing Or Try To Use Their Your Family As A Shield From The Sentence

This is one of the most difficult areas to convey to my clients. The argument that a defendant’s family will suffer the defendant is incarcerated may seem to be a logical reason not to incarcerate a defendant, but this argument is extremely irritating to the judge at sentencing. The almost universal response by the judge is to remind the defendant that they gave their family no thought when they committed the crimes - why are they so concerned now? Furthermore, many defendants have families and children. If every person who committed a crime was allowed leniency just because they had children to take care of, no one would ever be punished.

A defendant should never plea for mercy and should never use their children as a shield for accountability for their criminal acts. The judge well understands the impact of the sentence on the family of the accused. Lining up the defendant’s children in the courtroom will only anger the judge at such an obvious attempt to influence the judge’s decision. Children have no place in the courtroom.

No Statement At All - Respectfully Refusing To Making A Statement - Sometimes Be The Best Option

Not everyone is willing, or able, psychologically to apologize for their crimes at sentencing.

"No, thank you, your Honor" is always an acceptable response to a judge - allowing a lawyer to handle the sentencing argument is a good option.

If this a defendant informs this Author that they “simply cannot do this” - i.e. it would be a total train-wreck at sentencing - that is a legitimate fear. A written statement, perhaps read by the lawyer, will suffice. But if the client (defendant) can deliver even the shortest, coherent statement and hold it together for the duration of the delivery - it is typically the better option.

On the other hand, there are times when the defendant wants his “say” and desires to use this time to rail against the unfairness of the case. Then the lawyer’s job is to stop this idea in its tracks. The defendant that is in denial, who somehow wants to show bravado in the face of punishment, and who may seek to blame the victim, their witnesses, the lawyers, or even the judge, should be forced to silence for their own benefit.

The “let's get this over with” kind of arrogance, hostility, and defiance is the nightmare scenario for sentencing and must be stopped at all costs. THIS is the case where silence makes sense.

Sidebar - The Appeal Issue - Post-Conviction Sentencing Following A Trial And Expected Appeal

There will be times when criminal defense lawyers will stop their clients from speaking following a trial to verdict. This is the rare exception to the rule of allocution by the defendant.

The decision to prevent allocution is obviously based on the need to preserve the right to appeal.

Summary And Conclusion - The Apology - What To Say At Sentencing In A Colorado Criminal Case

There have been several other excellent articles on this subject - I would, for example, recommend these links:

Should a Defendant Speak at Sentencing?

Integrating Remorse and Apology into Criminal Procedure

What to Say, and Not to Say, at Sentencing

The right to allocution allows the defendant in a Colorado criminal case to participate directly, maybe for the first time, in the criminal justice process that is their case. Allocution gives the defendant a chance to speak and offers the judge and others an opportunity to gain a better understanding of the defendant.

Allocution permits a defendant to speak and to reaffirm his or her human dignity in the face of punishment. This right has been recognized in English common law since 1689.

A sincere, well-delivered and informed apology can change lives. It demands vulnerability, tolerance, and sacrifice. The power of apology is the ability to convey a look forward, can have a transformative power.

Conversely, there will be times when allocution is “too costly” to the defendant, too difficult to execute, and if the apology is to lie, deny, blame or try to excuse - allocution may have disastrous results.


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