Every once in a while, a defendant has something to say to a judge that has a positive impact. But that’s like betting on lightning striking. The vast majority of the time, when a defendant speaks out in court, whether he blurts something out in the midst of trial or even after he’s been fully prepped at sentence, it’s at best unavailing and at worst a disaster that ends up doing grave damage.
So naturally, a law review article suggest that defendants should be allowed, even encouraged, to share their voices with the court, unfiltered by their lawyers, and “talk back” to the judge.
People charged with crimes often speak directly to the judge presiding over their case. Yet, what can be seen in courtrooms across the U.S. is that defendants rarely “talk back” in court, meaning that they rarely challenge authority’s view of the law, the crime, the defendant, the court’s procedure, or the fairness of the proposed sentence.
With few exceptions, legal scholars have treated the occasions when defendants speak directly to the court as a problem to be solved by appointing more lawyers and better lawyers. While effective representation is crucial, this Article starts from the premise that defendants have important things to say that currently go unsaid in court. In individual cases, talking back could result in fairer outcomes. On a systemic level, talking back could bring much needed realism to the criminal legal system’s assumptions about crime and punishment that produce injustice.
It’s unclear what UNLV Lawprof Eve Hanan means when she says defendants “often speak directly to the judge.” Other than a plea allocution and sentence statement, they pretty much never do, at least not upon advice of counsel. As Hanan did some time in the trenches as a public defender, she should know this. Perhaps her clients did more talking than most?
But her argument isn’t about these ordinary functions where the defendants get to speak, but to encourage defendants to speak out, challenge, interrupt judges to bring “much needed realism” to the system’s assumptions. The irony of this premise is pretty stunning.
On the one hand, judges rarely take kindly to defendants challenging their decisions. Rather than result in “fairer outcomes,” it seems overwhelmingly likely that it will produce needless antagonism. Pissing off the decision maker is rarely the path to fairness.
More realism, however, is that most defendants are angry. What they have to say doesn’t inform anyone of anything they don’t already know (“but judge, I’ll lose my job, my apartment, my wife, my kids”), and tends far more along the lines of “fuck you, you piece of shit. Die, motherfucker.” Defendants are not trained to argue, don’t have much of a sense of what judges are thinking so that they can persuade them otherwise, and have rhetorical skills that work better on the street than in the well. They have a great capacity to do themselves damage, and almost no ability to help their cause.
This Article analyzes three types of power that prevent defendants from talking back in court: sovereign, disciplinary, and social-emotional power. While sovereign power silences defendants through fear, disciplinary power silences defendants by imposing a system of order within which talking back seems disorderly. Finally, social-emotional power silences defendants by imposing an emotional regime in which self-advocacy is both a breach of decorum and an affront to the court’s perception of itself as a source of orderliness and justice. The dynamics of social-emotional power are particularly critical to evaluating court reform efforts focused on improving courtroom culture. Paradoxically, the more solicitous the judge, the less the defendant may feel comfortable raising concerns that challenge the court’s narrative of justice.
Would courtrooms work better as free-for-alls, with defendants unconstrained by the awe of the sovereign, the fear of discipline and the “social-economic power,” whatever that means? What about enlightened self-interest, that a defendant knows that his lawyer is far better equipped to pursue his defense, his interests, his argument, than he is? What about the defendant who realizes that the “social-economic power” that constrained his worst impulses and angry outbursts is what prevents him from making admissions in court, from threatening the judge, from conclusively proving that he’s a fool if not a guilty fool?
There is a strong current in the Academy of breaking down the rules of decorum that are necessary for the system to function. Why all the hierarchy? Why should poor defendants feel that they aren’t entitled to tell the judge what they really think? What could possibly go wrong?
We spend a lot of time trying to get defendant to stop talking. We beg them to invoke their rights against self-incrimination. We explain why their testimony on their own behalf isn’t going to turn out the way they believe it is, why the self-delusional arguments they demand to make aren’t nearly as persuasive to the judge or jury as they are to grandma. We don’t do this because we want to be the courtroom hero, but because we’ve had far too much experience watching a defendant grasp defeat from the jaws of victory by opening his mouth.
It’s hard to imagine a new courtroom regime that would as much of a disaster as that proposed by Hanan. I get that prawfs are trying their best to reimagine everything, taking absurd risks at tearing down Chesterton’s fence of silence in the stunningly naive expectation that a sincere, teary-eyed defendant will convince the judge that his sale of 12 kilos of heroin was the product of a racist educational system. But while lawyers are still fighting every day to get defendants to not blow their defense with their big mouths, ridiculously bad ideas like this aren’t going to help.
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