What rights does the prosecution have to question a defendant at sentencing?

The Third Circuit addressed this question in United States v. Moreno, ___ F.3d ___, 2016 WL 53796 (3d Cir. Jan. 5, 2016).  A prosecutor in the Western District of Pennsylvania had an idea:  use the defendant’s sentencing allocution as an opportunity to cross-examine him about the offense conduct – an opportunity that the prosecutor hadn’t gotten at trial, when the defendant chose not to testify.

The prosecutor succeeded in eliciting incriminating admissions, upon which the sentencing judge expressly relied when imposing sentence.  Although the defendant had appropriately cabined his allocution to mitigation and remorse, defense counsel did not object to the cross-examination or the judge’s reliance upon it.  (Ineffective assistance at sentencing or harmless error?)

On appeal, the government sought refuge in the fact that neither a rule nor binding precedent explicitly says “no, prosecutors, you cannot cross-examine a defendant at allocution.”  The government relied on this “but no one said I couldn’t” analysis to argue both that no error had occurred, and that any error was not “plain” (as required for reversal, with no objection below).

The Third Circuit disagreed.  The opinion pointed out that the purpose of the “ancient” right of allocution, enshrined in Fed. R. Crim. P. 32, is to “permit the defendant to speak or present any information to mitigate the sentence” – a purpose that is fatally undermined if allocution opens a defendant to cross-examination.  Permitting cross-examination was not only error, but plain error.  (The circuit noted that a defendant who chooses to testify about offense conduct at sentencing may do so, but only by taking the stand and thus accepting the risks of cross-examination.)

And the Circuit went one step further toward reminding the government that “no one said I couldn’t” is not the limit of its obligations.  Even if the district court’s error were not plain, the Circuit said, it would exercise its supervisory authority to prohibit cross-examination at allocution.

The prosecutor in Moreno had tried another tactic that the Circuit also disapproved:  rehabilitating a witness not with his own statements, but with the statements of a non-testifying witness.  The defense had attacked the testimony of a key cooperating witness in the usual way:  by eliciting an admission that the witness’s hoped-for leniency at sentencing as a reward for his cooperation.  On re-direct examination, the government attempted to offer “prior consistent statements” of the witness, citing Fed. R. Evid. 801(d)(1)(B) – but the statements were memoranda prepared by the non-testifying special agent from the pretrial interviews of the testifying witness, and not the witness’s own statements.  The district court admitted the memoranda over a non-specific objection by defense counsel.

On appeal the Circuit agreed with the defense that the admission of the non-testifying agent’s statements violated the Confrontation Clause.