Can a judge consider "lack of remorse" if the defendant pleaded not guilty?

I saw a story on Traficant and the CNN legal analysts were saying that a good part of his stiff sentence was due to a lack of remorse. Maybe that is unofficial but I have heard it used before by judge’s . Isn’t there something wrong with expecting remorse from someone who claim’s they aren’t guilty? Looking for legal, not moral viewpoints.

Theoretically if you’ve been found guilty you did whatever you were accused of. Obviously innocent people have been sent to jail but my guess is the court works on the assumption that you DID do whatever it was and hence lack of remorse can count against you in sentencing. As far as the court is concerned at that point your protestations of innocence are just lies and you ought to own up to your misdeeds.

Just may WAG though…

That seems to be asking for self-incrimination. How would statements of remorse (made solely to appease the judge) be taken in any future appeal?

hrm… i am confused.

you are claiming to be remorseful, so you can get lesser penalty.

you cannot claim remorseful when you are innocent, so you don’t plead for lesser penalty.

so, there is no point here. in my opinion.

judge can claim lack of remorse if the defendant is proven guilty.

i failed to see the conflict. what’s wrong with me?

This is not my area of expertise, but I did spend a good amount of time hanging around in federal court watching people get sentenced.

If you’re lucky enough to commit a federal crime and convicted, you will run into the federal sentencing matrix. http://www.ussc.gov/guidelin.htm.

It’s a wicked good time.

Every federal crime has a base level number of points.

Then, you get more or less points based on surrounding circumstances. Prior offenses would add some time, acting as the leader in a conspiracy, etc.

If you look at this story:

http://news.yahoo.com/news?tmpl=story2&ncid=716&e=1&u=/ap/20020730/ap_on_re_us/traficant_trial_16

There is a paragraph that says:

These are sentence enhancements. Each one carries “bonus points” which are added to the base level offense.

At the end, that add all your points together and that correspond to a range of time you spend in jail. The judge chooses whether you serve the maximum or the minimum based on his or her whim.

So, to answer the original question: Taking responsibility for your crime is a -2. If you don’t plead guilty, you haven’t taken responsibility and, thus, don’t get the -2.

So, in a way, lack of remorse does increase your sentence.

None of this holds true for state law, but as an analog, if you commit a really depraved murder, its normally a death penalty offense. As opposed to, you know, undepraved murders.

TOM

So has anyone ever pleaded not guilty, got convicted, and then said sorry?

Sure. Not only that, you can plead not guilty, be found guilty and say you’re sorry to get a lighter sentence, and (in Texas) it doesn’t preclude you from seeking a new trial based on error in the guilt/innocence phase of the trial.

Pravnik,
Can your admittance of remorse at the sentencing being used against you in an appeal as admittance of guilt?

To tell the truth, I don’t know. I was wondering about that myself after I posted. As an admittance of guilt in open court, it sure seemes like it could, but maybe I’m missing something. I’ll try to look it up later.

OK, ex-criminal lawyer (1. California, 2. No, it’s not completely redundant, just mostly) checking in:

To the OP: In California, not pleading guilty can and almost always is, considered a aggravating factor in one’s sentence (at least in misdemeanors, where the judge shas much greater leeway in sentencing).

KidCharlemagne -
It doesn’t matter what you say as far as guilt or innocence to one’s appeal, since guilt and innocence is completely irrelevant to one’s appeal. Appeals only address technical procedural mistakes. They do not and cannot review the guilt or innocence of the appellant. IOW, Appellate courts review the law, never the facts. Generally, subsequent court proceedings would probably exclude evidence of remorse, since it would probably be considered “tainted” by whatever error the appellate court found. However, this is a total WAG. As always, ANSWERS MAY VARY BY JURISDICTION. SEEK COMPETENT COUNSEL BEFORE TRYING THIS IN COURT.

nth -
Welcome to the American Justice System, worst in the world, except for all the rest…

I misread KidCharlemagne’s question. Redhawke is right, an appelate court generally won’t consider matters of fact, only matters of law.

What I thought he was asking was, If you win a new trial on appeal, can your confession in open court during the sentencing phase of your previous trial be used against you during the guilt/innocence portion of your new trial? That one, I don’t know.

Well, if that isn’t the quickest invitation to GD I’ve seen in a long time, I don’t know what is… :slight_smile:

Back to the meat of your answer, though: Let us assume that you have a pretty strong case that the judge disregarded evidence in a trial that should have made a not guilty verdict pretty much certain. However, you were found guilty. Is there any mechanism (at least in California, given that’s where you were a criminal lawyer) for appealing such a verdict?

Actually that is my question if you consider remorse to be a confession.

Couple things that need clearing up.

An admission of guilt or remorse following a guilty verdict is not generally admissible in the prosecution’s case-in-chief in a retrial hat might ensue following a successful appeal. It is, however, admissible as a prior inconsistent statement should the accused choose to testify at the retrial and deny his formerly expressed culpability.

This is an exception to an exception. The accused statement at sentencing in Trial #1 is hearsay – that is, it’s an out-of-court (out of Trial #2, anyway) statement offered to prove the truth of the matter asserted. Normally, however, it would be admissible as an exception to the hearsay rule: an admission against penal interest is permitted, even though hearsay.

Statements of this kind are an exception to that exception. The logic is that even though it’s an admission, it lacks the usual indicia of trustworthiness, since even an innocent man, wrongly convicted, may conclude that his best hope for leniency is admitting the conduct with which he’s charged.

Turning our attention to the issue of facts considered at the appellate level, Redhawke.the.bard said:

That’s not entirely accurate.

An appellate court can review the record and determine if, as a matter of law, the evidence properly submitted to the fact-finder was sufficient to meet the burden of reasonable doubt. If they find it was not, not only is the conviction voided, but retrial is barred. Perhaps you were including this under the ambit of a technical, procedural mistake, but it goes directly to the sufficiency of the evidence that produced the guilty verdict, and certainly an innocent defendent would include a sufficiency challenge in his appeals.

Appellate courts can also consider motions for a new trial predicated on newly discovered evidence. The bar for this is rather high: the accused must show that the evidence is truly new - that is, it was not available to him at the trial through due diligence - and that it is highly probable that with this evidence, the outcome of the trial would have been different. Note that this latter motion may be brought as part of a direct appeal, or later, as a collateral attack on the conviction (what we used to call coram nobis petitions; now replaced by statutory post-conviction relief procedures pretty much everywhere).

It’s true that appellate courts will not re-hear evidence, or substitute their determinations of credibility for the trial fact-finder’s. But they will decide if evidence is incredible as a matter of law. And they will decide if credible evidence is sufficient as a matter of law.

  • Rick

Cerowyn, it’s not clear to me whether you’re picturing the judge excluding evidence in a jury trial, or the judge considering and rejecting evidence in a bench trial – that is, a trial in which the judge sits as fact-finder, without a jury.

So here’s both answers:

If, during a jury trial, the judge rules evidence inadmissible, and the accused believes the evidence should have been admitted, he may certainly appeal. Appellate courts generally review evidentiary decisions under an abuse of discretion standard. This means they do not ask themselves what decision they would have made, but rather, “Could any reasonable person in the judge’s seat have made the same decision?” If they conclude it was a abuse of discretion, then you’ve met one hurdle.

But it’s not enough to win a new trial. Even errors of Constitutional dimension are not enough, alone, to secure a reversal. You must also show that the error was not harmless – that is, you must that without the error, there is a reasonable probability that the outcome would have been different. The harmless error standard is discussed in detail in a case called Chapman v. California - or ,as we used to call it, the “If they want ya, they got ya,” rule.

The rules change dramatically if you’re appealing from a bench trial. In that case, the judge is the fact-finder; he hears the evidence and weighs its credibility. The appeals court will give no regard to a appeal that argues the judge should have weighed the credibility differently than he did. As long as the record shows sufficient evidence to support his verdict, the appellate court will not disturb it.

Note that there must be sufficient evidence, as a matter of law, to support the verdict. If pravnik is charged with arson when his ex-wife’s car is soaked was gasoline and torched, and the prosecution shows only that the divorce was bitter, the couple had argued the day before the event, and a gas station attendant remembers pravnik buying three gallons of gas in cans that evening, the guilty verdict will be overturned. That’s not enough evidence to establish, beyond a reasonable doubt, that pravnik was the guilty party.

  • Rick