As an initial matter, a defendant in a criminal case has an absolute right to remain silent throughout the entirety of the trial. This includes the right to remain silent during the sentencing hearing. This is his or her right and it cannot be used against him or her in any way. As such, much of the time it is simply wise not to speak at sentencing.

However, the decision on whether to speak has been made more interesting by Davis v. State, case No. SC19-716, issued on December 2, 2021, by the Florida Supreme Court. Prior to Davis, it had been nearly universally held in Florida that the lack of remorse by a defendant could not be a consideration by a court when fashioning a sentence. Davis changes this.


When Should a Defendant Speak?

In Florida’s sentencing scheme, there are various statutory grounds for a downward departure from a bottom-of-the-Guidelines sentence. Some of these, while they could theoretically be proven by the testimony of third parties, are best proven with the actual words of the defendant. There is one statutory basis for a downward departure that it most relevant to this article: that the crime was committed in an unsophisticated manner and was an isolated incident for which the Defendant has shown remorse. Fla. Stat. 921.0026(1)(j).

By this law, the Legislature has explicitly made a defendant’s remorse an element to be considered when sentencing a defendant convicted by a jury or judge. Whether a defendant is remorseful is typically determined by the defendant’s words at the sentencing hearing. This may or may not be the best manner of proving remorse as a court may take the statements as self-serving, but it is beneficial to have the defendant testify in this circumstance. However, I would recommend also calling witnesses to the stand who can testify that the defendant has previously indicated remorse to them by words or actions as well.

In short, a defendant should speak at sentencing when the testimony is useful to proving a basis for a departure sentence.


When Should a Defendant Stay Silent?

There’s an expression we all learn at a young age that is applicable here: if you don’t have anything nice to say, don’t say anything at all. If at sentencing a defendant only wishes to speak to further proclaim his innocence or to vent his frustration at his attorney, the jury, the judge, or the law, it’s best to stay silent.

First, a defendant already announces his innocence by a plea of not guilty. By the time you are at sentencing, a jury has found otherwise. Continuing a protestation of innocence is not going to persuade the judge that the jury got it wrong and that the defendant, therefore, deserves a lesser sentence. If the judge truly felt the evidence was lacking, he would have granted a judgment of acquittal earlier in the trial or a motion for a new trial after the trial.

Additionally, the Florida Supreme Court in Davis v. State has now expressly authorized trial courts to consider a lack of remorse and/or acceptance of responsibility as a basis sentencing above the bottom of the Guidelines (but still below the statutory maximum for the crime charged). However, this only applies when a defendant has voluntarily decided to allocute (testify) at sentencing. If he or she remains silent, the court cannot consider the lack of remorse in the sentence. But, when the defendant speaks and fails to take responsibility, a court can properly consider that person’s lack of remorse in fashioning a sentence. “We hold that when a defendant voluntarily chooses to allocute at a sentencing hearing, the sentencing court is permitted to consider the defendant’s freely offered statements, including those indicating a failure to accept responsibility.” Davis v. State.

The dissent in Davis argued that “a trial court violates a defendant’s constitutional right to due process and right against self-incrimination where it penalizes a defendant for the failure to admit guilt.” The majority disagreed by stating that the presence or lack of remorse is either relevant or it isn’t. In other words, you can’t have remorse being a mitigator while lack of remorse is forbidden from being an aggravator. The key here is that lack of remorse can only be used as a sentencing factor when the defendant testifies at sentencing and proves this factor. As such, if the basis for testifying at sentencing is to gripe at the jury’s decision, it’s best to continue to stay silent.