Victim allocution statements

I currently have a victim of two violation-of-protective-order cases with the same defendant. There’s a long history between the victim and defendant and thankfully, she is actually done with her violent man. Early on in her cases, when we thought he was going to plead, she told me she wanted to make an oral statement in court after he pled. As a misdemeanor prosecutor, I am pretty familiar with Victim Impact Statements (VISes) under Article 56.03 of the Code of Criminal Procedure, but in the four years I’ve been prosecuting misdemeanors, I’ve never actually had a victim tell me she wanted a chance to come to court and say something. (Usually I’m trying to convince victims of family violence to come to court!) So when she told me this, I intelligently said something like, “Uh, really? Wow! Really? OK—let me look into it.”
    I had to first get it into my head that the right to speak she was talking about wasn’t the same as her testimony in the punishment hearing. She wasn’t talking about testifying in a question-answer form as to all the bad things the defendant had ever done to her; rather, she was talking about giving him a piece of her mind. So I pulled out TDCAA’s Victim Assistance Manual and started reading about victim allocution, a.k.a. the victim’s right to speak after punishment.1
    Article 42.03(1)(b) of the Texas Code of Criminal Procedure is the guiding statute, specifying to which victims this right applies and what they can talk about. After reading up on the subject, I was sad to tell my victim that the statute didn’t apply to her because she technically didn’t qualify as a “victim” for this purpose. Article 42.03 states in part that “the court shall permit a victim, close relative of a deceased victim, or guardian of a victim, as defined by Article 56.01 of this code, to appear in person to present to the court and to the defendant a statement of the person’s views about the offense, the defendant, and the effect of the offense on the victim.” Article 56.01 defines a victim as a “person who is the victim of the offense of sexual assault, kidnapping, aggravated robbery, trafficking of persons, or injury to a child; elderly individual; disabled individual; or [a person] who has suffered personal injury or death as a result of the criminal conduct of another.” Well, I had a victim of two violations of a protective order, and although she has suffered personal injury at the hands of this defendant, it wasn’t related to the cases I was prosecuting. So I directed her back to the victim impact statement.
    Even though my victim in these violation-of-protective-order cases is not allowed to give an allocution statement, I did some further reading on the subject in anticipation that maybe in the future I will have a victim who qualifies and I can be ready with a truly intelligent response. Let’s briefly look at the difference between the victim impact statement and the victim allocution statement.

Victim Impact Statement
•    Article 56.03, Tex. Code Crim. Proc.
•    Written statement
•    Provided to prosecutor and judge
•    Contains information about the impact of the offense on the victim with respect to physical, psychological, and financial injuries
•    Court must consider after defendant is convicted or pleads guilty or no contest and before imposing sentence
•    Defendant has right to notice and may rebut or cross-examine the information in the statement

Victim Allocution Statement
•    Article 42.03, Tex. Code Crim. Proc.
•    Oral statement
•    Made to judge and defendant
•    Includes victim’s personal views on the offense, the defendant, and the effect the offense has had on the victim
•    Made after sentence is pronounced
•    Typically includes very personal testimonies from the victim and family members regarding the pain and suffering the defendant has caused them
•    Forum for family members to talk about the victim, her accomplishments, and her lost hopes and dreams
•    Forum for victims and family members to condemn or forgive the defendant
•    Defendant has no right to respond
    Texas caselaw gives us minimal guidance on victim allocution statements. In Johnson v. State, the issue addressed by the court is the timing of the statement.2 The court found that the meaning of Article 46.03 is pretty clear: Victim allocution statements can be made only after sentencing is pronounced; therefore, a judge can’t go back and alter sentencing based on what he’s heard as an unsworn, un-cross-examined victim allocution statement.3 The judge in Johnson did just that by adding jail time to a probation sentence that was already pronounced after hearing the victim’s allocution statement. The Court of Criminal Appeals said that was unacceptable, reversed, and remanded.
    In State v. Aguilera, the judge actually reduced time from the defendant’s sentence after hearing the victim allocution statement.4 The State appealed on the issue of plenary power, and the appellate court reversed the trial court, remanding the cause for reinstatement of the sentence. However, the Court of Criminal Appeals reversed the appellate court and reinstated the reduced sentence. The court noted that the State raised only the plenary power argument, not that the modification was based on an improper consideration of the victim allocution statement and therefore could not address the allocution issue. (That argument likely could have changed the outcome of the case.) The dissent in State v. Aguilera felt it worth addressing the fact that the judge changed the sentence after hearing the allocution statement and discussed the legislative intent of the statute.5 The dissent also recognized that the original legislative bill permitted victim allocution statements to be made before pronouncement of a defendant’s sentence, but during the committee hearings concerns arose that victim statements could influence judges and alter punishments, so the bill was amended to allow victim allocution statements only after the court pronounces the sentence.
    Of course there are critics out there who argue that the victim allocution statement should be abolished as it is a “superfluous” process wherein victims cannot conduct themselves in a “dignified manner,” creating a “frontier justice” atmosphere in which victims are allowed to “lash out” at defendants, and defendants’ families must “seek outlets for their frustration.”6 But supporters argue the obvious, that this process allows victims of violent crimes the choice on whether to partake in the process and provides a forum where they, not the defendant, become the focus of the crime.7 This option, in turn, allows for psychological healing and the ability to regain control over something that has drastically and negatively altered their lives.
    I am sure other prosecutors have heard many victim allocution statements. I myself witnessed one that I will never forget. I was observing an attempted murder trial in our county’s district court because I had helped with the protective order for these particular victims and felt invested in the outcome of the trial. The father tried to shoot his wife, son, and daughter while they were driving, and the 14-year-old son gave a victim allocution statement. His demeanor was more than dignified, and he exhibited more wisdom and grace than most adults I know are capable of. A number of observers fought back the tears as this young man, who was no longer a child, told his father he’d never understand him but he’d always love him.

Endnotes
1 Some refer to the victim’s right to speak after sentencing as “elocution.” Perhaps this is an effort to not confuse the victim’s right to speak with a defendant’s right to speak at sentencing under Art. 42.07, commonly referred to as a defendant’s right to allocution. However, caselaw, legal articles, and the index in the TDCAA Criminal Laws of Texas manual refer to it as “allocution,” and that is how I will refer to it in this article.
2 Johnson v. State, 286 S.W.3d 346 (Tex. Crim. App. 2009).
3 Id. at 349-350.
4 State v.  Aguilera, 165 S.W.3d 695, 696 (Tex. Crim. App. 2005).
5 Id. at 706.
6 Nicholson, Keith D., “Would you like some salt with that wound?”, 26 St. Mary’s L.J. 1103, 1995.
7 Morton, Nikki, “Cleaning salt from the victim’s wound,” 7 Tex. Wesleyan L. Rev. 89, Fall 2000.