Allocution

• Jurisdiction: Maryland

VII. Allocution

A. What and when

Prior to being sentenced, the defendant has the right to personally address the court, in addition to having defense counsel address the court. The defendant addressing the court is called "allocution." Shifflett v. State, 315 Md. 382 (1989); Harris v. State, 306 Md. 344, 352, 357 (1986). In Miller v. State, 67 Md. App. 666, 674-75 (1986), the Court of Special Appeals held that the purpose of allocution is to provide the defendant with an opportunity to refute or explain any information presented and to speak in mitigation. Allocution is not subject to cross-examination. See Booth v. State, 306 Md. 172, 199-200 (1986).

The trial court is not required to inform the defendant of the right of allocution. The court is required only to provide the defendant with an opportunity to address the court and to make a statement. Jones v. State, 414 Md. 686, 698-99 (2010). In Clermont v. State, 348 Md. 419, 452, cert. denied, 523 U.S. 1141 (1998), the Court of Appeals held that the trial court, not the defendant, controls the timing of allocution at sentencing.

In Brown v. State, 11 Md. App. 27, 34 (1971), the Court of Special Appeals held that although the court erred by sentencing the defendant, without granting the right of allocution, the error was harmless because the court allowed the defendant's counsel to make an argument in mitigation after the sentence was imposed, and the judge gave consideration to that argument. In Hill v. United States, 368 U.S. 424 (1962), the Supreme Court held that the failure to allow the defendant to speak during allocution "is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair...