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Florida’s Catch-22 for the Innocent Defendant (and Others Wishing to Protect Their Right Against Self-Incrimination)

by M. Eve Hanan, Sentencing Law and Policy 

The Supreme Court of Florida recently held that the trial judge may penalize more harshly a defendant who maintains his innocence at sentencing. Davis v. State, No. SC19-716 (December 2, 2021).

The court framed the issue as follows: “Does a trial court, when imposing a sentence on a defendant who has voluntarily chosen to allocute and maintain his innocence at the sentencing hearing, violate the defendant’s due process rights by considering the defendant’s failure to take responsibility for his actions?”  The unmissable foreshadowing in the court’s framing hints that the court will assuage due process concerns with a waiver-type theory: If the defendant voluntarily speaks at sentencing, anything the defendant says, including protesting his innocence, is fair game for the judge to consider in sentencing.

A protestation of innocence is a fair characterization of Mr. Davis’ statement at sentencing. In fact, he maintained his innocence throughout. Unlike over 95% of defendants, he did not plead guilty but asserted his right to a jury trial.

Davis was charged with possession of a firearm by a prohibited person based on a gun found in a car in which he was a passenger.  At trial, the teenage driver testified that the gun found in the car belonged to his passenger, Davis. The jury believed the teenage driver and convicted Davis. No physical evidence tied Davis to the gun.

At sentencing, Mr. Davis made a statement, quoted in full in the dissenting opinion, that argued for his innocence and expressed disappointment in his attorney and in the verdict. The allocution appears to have been cogent and polite, but, as I have argued in my article “Talking Back in Court,” the courtroom setting makes the defendant’s efforts to speak both risky and difficult.  In the Florida Supreme Court’s characterization of his allocution, Mr. Davis was “voicing his disagreement with the verdict, blaming the driver, the police, his lawyer, and the trial court for his conviction…” However respectful his tone or reasonable his claims, he talked back.

The sentencing range permitted any sentence from 10 to 15 years.  The judge imposed the maximum term of 15 years based on the crime, Mr. Davis’s prior record, and his “failure to take any responsibility.”

It should be noted that remorse and taking responsibility are treated as interchangeable by the court, but they are different. Remorse is an emotion. As I have argued elsewhere, it is difficult to assess remorse accurately, and that ambiguity lends itself to implicit biases that may fuel sentencing disparities. Taking responsibility, on the other hand, is often just another way of saying that the defendant confessed or pleaded guilty. In Mr. Davis’ case, the court labeled Mr. Davis’ protestation of innocence as a failure to take responsibility.

Remorse and taking responsibility are permissible mitigators in at least two areas of Florida sentencing law: in downward departures from minimum sentences and as mitigation in the penalty phase of death penalty trials. In contrast, a lack of remorse or failure to take responsibility may not be considered as aggravating factors in death penalty cases because “[t]o equate a defendant’s not guilty plea with lack of remorse … would in effect punish the defendant for exercising rights of due process.” Pope v. State, 441 So. 2d 1073, 1078 (Fla. 1983).  And, in another death penalty case, the court held that maintaining one’s innocence, through a plea of not guilty, cannot be used to reject the mitigating factor of “appreciat[ing] the criminality of one’s conduct.” Holton v. State, 573 So. 2d 284, 292 (Fla. 1990).

The Florida Supreme Court first distinguished Davis’ prison sentence from the death penalty caselaw, which adheres to strict limits on aggravating factors.  In contrast, the sentencing judge had discretion to sentence Mr. Davis to any amount of time within the 10- to 15-year sentencing range set by statute.  Second, the Florida Supreme Court characterized as dicta the language in the death penalty cases that stated that penalizing defendants for protesting their innocence violates due process.

The Florida Supreme Court then pivoted to its waiver theory to resolve the question of whether penalizing a defendant for maintaining his innocence violates due process or the right against self incrimination in the Florida Constitution. Art. I, § 9, Fla. Const.  By choosing to allocute, the court reasoned, Mr. Davis waived his right to remain silent.  And thus, anything that he said could be held against him.  The court drew a parallel between Mr. Davis’ “unwillingness to accept the truth and take responsibility” and U.S. v. Grayson, 438 U.S. 41 (1978), in which the Court held, under federal sentencing law, that the trial judge may consider the defendant’s false trial testimony.

In his dissent, Justice Polston argued that punishing the defendant for proclaiming his innocence is analytically indistinguishable from punishing the defendant for asserting the right against self-incrimination. Moreover, the dissent went on, there must be limits to the voluntary relinquishment of the right to remain silent.  If, as both the concurrence and the dissent stressed, some considerations are categorically impermissible, they cannot be waived through some sort of assumption of risk that the defendant takes on by speaking at the sentencing hearing.  For example, the sentencing judge cannot punish the defendant for having a religious affiliation merely because the defendant volunteered information about his religion during sentencing. Likewise, the dissent argues, volunteering to speak at sentencing does not terminate the defendant’s right against self incrimination and due process.

Where does Davis leave the innocent defendant?  Where, for that matter, does Davis leave any defendant who does not confess guilt and express remorse during sentencing?  As in so many other contexts, the defendant is in a Catch-22 in which leniency is predicated on admissions of guilt at a time when the right against self-incrimination remains critical to any retrial granted on appeal. 

M. Eve Hanan is a Professor at the UNLV Boyd School of Law. This article was written as a guest post for the Sentencing Law and Policy blog, published Dec. 15, 2021 at It is reprinted with permission.

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