Witnesses and alleged victims can speak at sentencing hearings, but as a practical matter, very few do. Florida provides a constitutional right for victims to be present at what’s called a crucial stage of the legal proceedings. Sentencing is always considered a crucial stage. The input from a crime victim is always very important. Lawyers don’t talk about it very often, but my experience with criminal defense cases has taught me that it’s critically important to determine how a purported crime victim feels about a particular case. Sometimes if the case is handled incorrectly, they end up angry at the prosecution and actually happy with the defense. It seems counterintuitive, but that actually does occur. It’s important to take into consideration how they feel.

Sentence Hearing Example

For example, if you compare the behavior of the victims in two very different cases-one dealing with the theft of a small amount of money and the other dealing with the victim of a battery or physical assault-you may be surprised about the difference between the two. In my experience, the person who has had something stolen from them is almost always far angrier than the person who sustained a physical injury. This is very counterintuitive. When I explain this to people, most say that if somebody gave them a black eye, they would want them to receive the maximum sentence permitted by law. Yet when you actually get into these cases, you see that the person who has had some small amount of money stolen form them wants the maximum penalty under the law. The person who was physically injured is more inclined to be forgiving and interested in rehabilitation for the defendant.

In my view, it’s very important to make sure that your legal team knows how to assess the down-the-road impact of a crime victim or a witness’s feeling about a particular case. Generally speaking, when it comes to criminal cases in Florida, surprise equals bad. But whether it was Escambia, Santa Rosa, Okaloosa or Walton Counties throughout the entire first judicial circuit, I have found it to be true that victims of financial crimes are far more likely to show up with a very angry demeanor at a sentencing hearing. In my view, part of proper defense preparation is to prepare for the possibility of the sentencing. Nobody wants to hear that. They want to hear that they are going to win their case. However, you can’t effectively handle a criminal case in Florida unless you look at it from every possible perspective. That includes the dynamics that will go into a particular case should it proceed to sentencing at its conclusion.

Does Someone Have To Provide Any Input At Their Own Sentencing Hearing?

Absolutely, and you will have two types of input into your sentencing hearing. First and most importantly, you will have input with your legal team. This is more important than you might think. For obvious reasons, people have a personal stake in the outcome of what happens to them, and this can sometimes distort their thinking. If not properly educated on the ballpark of reality when it comes to sentencing, a defendant (or their family member or other loved one) may say something inappropriate that results in it going over very poorly.

For example, there is a very famous sex offense case in which the father of a man by the name of Brock Turner wrote a letter to the judge about how five minutes of indiscretion was destroying his son’s life. While the father’s letter was meant to help, it was immediately picked up by anti-sex offense activists and both Brock Turner and his family were pilloried by Brock Turner’s conduct and by what was written in that sentencing letter. So, being on the same page with your legal team is critical since there are so many ways to say something honestly and with the spirit of openness and reflection. Statements can often come across in such a manner that they do just the opposite of what was intended. If someone wants to read an apology in the open court or wants to write a letter of apology to someone who is a crime victim, it should first be looked at by their legal counseling team. I have my clients do that every single time. No letter of apology is ever released until I have had a chance to review it. Does this mean that I tell people what to say? No, absolutely not. However, it does mean that if there is something in there that is going to have just the opposite effect of what we want to happen, then we can go ahead and make sure that it is corrected.

You Have Sentencing Input

Additionally, you’ll have input into sentencing at a second point in the courtroom. When we’re talking about input in the courtroom, we’re talking about direct input and indirect input. Let’s go through each of those. Direct input is what someone says and does in the courtroom. Sometimes the judge will want to ask questions. Being prepared for those questions can be very important, especially if it’s a sentencing hearing without an agreement. Indirect input will be things such as what a person wears to court. Obviously, someone’s choice of style, fashion or lack thereof should not be held against them in a sentencing hearing. But in reality, it’s one of the single most important things a person can be mindful of.

When I was first doing my research into the impact of the defendant’s clothing on the outcome of a case, I was absolutely blown away by one study. In this study, a male defendant with no facial hair was found to receive the highest acquittal rate simply because he was wearing a navy suit. The moment they took the mock trial scenario, started changing the suit color and allowed the defendant to grow any amount of facial hair, the conviction rate went up 25%. This really shocked me. First of all, that’s wrong. Secondly, I think it’s negligent as a lawyer not to point this out to my clients. This is something that can make a major impact in their case. We are talking a 25% difference in an acquittal rate and mock trials based solely upon someone’s suit color and whether or not they have facial hair. These types of things are true for women as well.

Each one of my clients gets a couple of things to help in the case that there is a sentencing hearing or trial. First, every client receives a copy of Coping with Stress during Criminal Prosecution. If someone is sitting in the courtroom and fidgeting, yanking at their shirt collar, jigging around and engaging in other behaviors indicating stress, they are broadcasting a very powerful signal of guilt and social unacceptability. On the other hand, someone who has a calm demeanor and is behaving appropriately for the courtroom is not broadcasting those negative signals and is not bringing negative attention upon themselves. When someone-and this includes family members and favorable witnesses-is following our protocol dress instructions for court, it takes a great burden off of my mind. I don’t have to worry about them having a 25% greater risk of jail or prison time simply because of the clothing they are wearing. I can’t tell you the number of times I have been asked by members of both genders if it is acceptable that they wear black. One of the most impacting indirect aspects of your input at sentencing is the clothing that you wear, and black is the prison color.

Disclaimer: This article is in response to questions frequently asked of Mr. Cobb and is an unedited dictation transcript. Just like talk to text on your smartphone, there may be misspelled words or sentence fragments.

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