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Appeals court rules defendant cannot be cross-examined after allocution

On Tuesday, a federal appeals court ruled that people who are convicted of federal crimes have a right to make a final statement before the judge sentences them without being cross-examined by prosecutors. This opinion by the 3rd United States Circuit Court of Appeals is based on a rule that governs criminal procedures in federal courts. A federal jury in Pittsburgh convicted a 32-year-old Shaler man on five counts of wire fraud and two counts of conspiracy in September 2013. A U.S. district judge sentenced him in February 2014 to eight years in prison. The court said that even if the rule didn’t exist, "we would still mandate the procedure that at sentencing a defendant must be provided the opportunity to speak directly to the court…and not be subject to cross-examination." During the hearing, the Shaler man told the judge he was sorry and he provided an explanation for why he committed more than $9 million worth of mortgage fraud that involved more than fifty victims. The prosecutor conducted a cross-examination, questioning the man about his criminal conduct. The prosecutor used the man’s responses in his argument and the judge referred to the man’s responses when rejecting several defense arguments for a lesser sentence, according to the panel. The appeals court threw out the man’s sentence and sent the case back to the judge for a new sentencing hearing. The right of a defendant to make a final statement before sentencing is called "allocution" and goes back to the United Kingdom as early as the 15th century, according to one law professor and former federal prosecutor. He says that when defendants are given the opportunity to allocute, it should be separate from normal trial processes. He says the rights is rooted in our definition of a "fair trial." Cross-examining a defendant after allocution is unfair and arguably un-Constitutional.

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