Definition
Calling upon a prisoner is a formal procedural act performed by the clerk of the court after a criminal defendant has been found guilty on an indictment. The clerk addresses the convicted person directly and asks whether the defendant has anything to say as to why judgment should not be pronounced against them. This invocation marks a distinct stage in criminal proceedings, occurring after verdict but before formal sentencing, and functions as a ritualized opportunity for the defendant to speak before the court imposes punishment.
Common Language
The phrase carries its ordinary English meaning into legal usage — literally, the act of calling upon a person, summoning them to speak. What ordinary usage cannot convey is the precise procedural and constitutional weight that historically attached to this moment. In common speech, "calling upon" someone is informal and voluntary; in this context, it is a formal court act embedded in the sequence of criminal proceedings, with specific legal consequences if the defendant raises a valid plea in bar of judgment.
Common Confusion
Calling upon a prisoner should not be confused with the modern right of allocution, though the two are closely related and share the same underlying purpose. Allocution is the defendant's affirmative right — recognized in modern procedural rules — to make a personal statement before sentencing. Calling upon a prisoner is the older, clerk-driven procedural trigger that initiates that opportunity. In historical practice, the calling was the court's formal act; the response was the defendant's. Modern procedure has largely absorbed this ritual into allocution requirements without preserving the distinct terminology.
Why It Matters in Research
Researchers encountering this term in historical criminal records, court minutes, or older procedural treatises should understand that it marks a structurally important moment in the proceedings — the gateway between verdict and judgment. Several research considerations apply.
First, the temporal placement matters. Calling upon a prisoner occurs post-verdict, pre-sentence. Documents referencing this act are therefore likely to appear in the portion of trial records that bridges the jury's finding and the court's formal judgment entry. If a researcher is reconstructing the procedural sequence of a historical trial, the presence or absence of this act in the record may indicate whether proper form was observed.
Second, the defendant's response at this stage was not merely ceremonial. Historically, a defendant could raise several pleas in bar of judgment at this point — including a plea of pregnancy (in the case of women sentenced to death), a claim of benefit of clergy, or a motion in arrest of judgment. The calling therefore opened a last procedural window with real substantive consequences.
Third, this terminology is essentially archaic in modern American and English practice. Researchers working in contemporary sources will not encounter it as an operative term; it belongs to the pre-codification common law tradition and survives primarily in historical court records and older procedural texts. Conflating it with the modern allocution right, while analytically useful, may obscure the distinctions that mattered in earlier practice.
Historical Dictionary Support
Black's Law Dictionary provides the core description: when a prisoner has been found guilty on an indictment, the clerk of the court addresses the prisoner and calls upon them to say why judgment should not be passed. This formulation is consistent with the broader common law tradition of pre-sentence address, which English courts observed for centuries as a matter of both procedural form and substantive protection.
Black's entry is brief and descriptive rather than analytical. It does not address the specific pleas a defendant might raise in response, nor does it trace the procedural consequences of failing to call upon the prisoner before entering judgment. Historical treatises on English criminal procedure — including those addressing arraignment, plea, and judgment — provide richer context than the dictionary entry alone supplies. Researchers should treat Black's definition as a reference point rather than a complete account.
Jurisdictional Note
This term is rooted in English common law criminal procedure and carries that heritage into early American practice. Modern American jurisdictions have replaced this formalism with codified allocution rights, typically found in rules of criminal procedure. Its appearance in American sources is largely confined to pre-codification records and materials predating the twentieth-century procedural reform movement.