Developing Mitigation Evidence

Developing Mitigation Evidence

More than 90% of Federal cases end in a guilty plea. Once guilt is no longer at issue, the focus moves to mitigation — the factors that diminish the level of guilt and weigh in favor of lesser punishment. This article by Janet Hinton provides a good overview of the process.

Janet Hinton (FPD E.D. Mo.)


Mitigation evidence is critical to effective sentencing advocacy. It is the key to helping your client avoid imprisonment or reducing its severity. Mitigation encompasses any circumstances that significantly affect or affected your client’s character and behavior related to the offense. Mitigation possibilities are of course endless. There is often important information in the client’s history which will need to be gathered by the attorney and presented to the probation officer, prosecutor and the court. Mitigation evidence can be created and further developed from the initial client meeting up until the sentencing. This page is designed to assist defense counsel in identifying, understanding, and persuasively presenting all mitigating evidence and advocating for the lowest possible sentence.


Interviewing the Client:

The client interview is the starting point for developing mitigation evidence. Use this time to identify the client’s strengths, achievements, and support networks. This is also an opportunity to begin understanding the early developmental and environmental context within which the client grew up, and to uncover possible mental health or mental disability issues (including any history of sexual abuse underlying such issues). Screening for an abuse history (physical, emotional, and sexual) is important. Some survivors of what clinicians would clearly label abuse do not label their own experiences in that way, or some survivors desire to avoid the stigma associated with the term abuse. Be alert to signs suggesting abuse, trauma, mental illness, or cognitive impairment during interviews with the client and in the records you gather. People generally are reluctant to admit they have mental impairments because they fear the stigma that results. Be mindful that people with mental retardation have learned to mask their deficits, are eager to please, and may give the answer they think you want to hear. When explaining a concept to a client, it is helpful to ask him or her to tell you what it means. A client may not be able to articulate what is mitigating but, through careful observation, you will identify it. Resources for conducting a productive client interview include:

Read the rest here.

Leave a Reply

Your email address will not be published.*