In a recent decision less notable for its conclusion than for the observations made along the way, the Third Circuit recently held that a sentencing judge did not commit error when he required a defendant to be placed under oath before allocating to the court prior to the imposition of sentence.

The defendant in United States v. Ward, 732 F.3d 175 (3d Cir. 2013), appealed his child pornography conviction on multiple grounds, including that the District Court had required Ward to take an oath prior to presenting his verbal statement to the court at sentencing.  Since Ward appeared to have covered a broad swath of subjects in his sworn allocution, the harm which befell him from being required to be first sworn is entirely unclear – his counsel could only argue on appeal that the obligatory oath violated his "fundamental right to present a personal allocution."  Id. at 183.

In any event, the appeals court took the claim sufficiently seriously to review the historical right of allocution, noting its antecedents in the 15th century, but pointing out that it is not a constitutionally-guaranteed right, despite other courts having grounded the right in the Fifth and Fourteenth Amendments.  Id. at 181 & n.5.  Also, Fed. R. Crim. P. 32, which governs sentencing, is silent on the point, requiring only that the sentencing court must address a defendant personally and must permit the defendant to speak or present information in mitigation.  Ibid.  The court noted, too, that the Sentencing Guidelines do not distinguish between sworn and unsworn statements by a defendant at sentencing, providing that either may, if false, provide the foundation for an upward adjustment for obstruction of justice under U.S.S.G. § 3C1.1Id. at 182.

The court of appeals noted that the right of allocution is not unlimited, and may be restricted by the sentencing judge as long as the defendant has some opportunity to address the court.  Ibid.  Therefore, a sentencing judge may choose to swear a defendant, or decline to do so, before hearing the defendant's personal allocution.

(Alain Leibman, Esq., the author of this entry and a co-author of this blog, is a partner with Fox Rothschild LLP, based in our Princeton, NJ office.  A former decorated federal prosecutor, he practices both criminal defense and commercial litigation in federal and state courts)

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