(276) The right to allocute
, combined with the permissible consideration of acceptance of responsibility, carves out an area of judicial discretion in which implicit bias may affect the interpretation of ambiguous information.
They must either allocute
to and concede these enhancement issues to gain guilty-plea benefits or go to trial on enhancement issues and forfeit these plea benefits.
In the federal system, "[b]efore entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea." (67) As Professor John Douglass highlights, "In federal cases, Rule 11 sets no standard for the type of evidence, degree of detail, or standard of proof necessary to establish a factual basis." (68) And as Professor Julie O'Sullivan explains, "Although judges may ask a defendant to 'allocute
,' that is, to concede guilt, there is no judicial 'trial' or even a cursory review of evidence." (69) The federal rule does not specify that any particular type of inquiry be made as to that factual basis.
Entering the plea rests on the defendant's ability to allocute
and to respond correctly as part of the court's colloquy; while the trial would have depended on the rules of evidence, procedure and counsel's skills at persuasion and usually without defendant's testimony.
"This is because a defendant who pleads guilty must allocute
to every element of the offense.
(137) Despite the fact that, as a result of the previous decision, (138) trial courts were required to specifically ask defendants if they had anything to add before sentencing, and that the majority agreed that this constituted the best practice to ensure a defendant's right to allocute
, Justice Markman concluded that the prior decision "cannot be said to have caused defendants to alter their conduct in any way" and therefore overruling it would not cause any "practical real-world dislocations." (139)