Mitigation means reducing risk of loss from the occurrence of any undesirable event. In general, mitigation means to minimize degree of any loss or harm.
Any fact or circumstance that lessens the severity or culpability of a criminal act. Mitigating factors include an ability for the criminal to reform, mental retardation, an addiction to illegal substances or alcohol that contributed to the criminal behavior, and past good deeds, among many others.
In criminal law, a mitigating factor, also known as extenuating circumstances, is any information or evidence presented to the court regarding the defendant or the circumstances of the crime that might result in reduced charges, bail, or a lesser sentence.
To help explain why things happened in some ones life.
Most lawyers don’t realize that mitigation investigations and report evidence is a key part of any good defense strategy.
“Investigations into mitigating evidence should comprise efforts to discover all reasonable available mitigating evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor.” Justice Sandra D. O’Connor, Wiggins v. Smith
What does a Mitigation Investigator do?
The Mitigation Investigator is a member of the criminal defense team that provides supportive research and significant documented history of the defendant to defense counsel, EXPARE.
Working with Defense Counsel and/or Public Defender Services, the mitigation specialist is accountable for the independent preparation and presentation of mitigating evidence in the penalty phase of a Capital case, and can provide similar services in cases of serious violent and non-violent crime.
The Mitigation Investigator bears the primary responsibility for providing trial lawyers with information, professional analysis, expert testimony and evidence to present to a judge or jury in considering the disposition of a significant criminal case.
Avery & Associates Mitigation services can:
Maximize the defense counsel’s valuable time by:
Spending sufficient time with the defendant in preparing mitigation.
Conducting a thorough investigation into the bio/psycho/social history of the accused to identify potential mitigating factors that should be presented as well as creating the personal story of the accused.
Identifying and interviewing all lay witnesses; the family members, peers, co-workers, teachers, clergy and other social contacts of the defendant who have important pieces of the puzzle of defendant’s life experience and can provide important supporting mitigating evidence.
Identifying the need for experts’ support in psychological and mental health evaluations and provide resources in substance abuse, and social service programs.
Highlighting implications of abuse, neglect or disability to support arguments and assist in finding appropriate experts to support the defense argument
Providing the detailed, important, forensic documentary evidence, and “skipper” reports with support information for mitigation arguments
Preparing a well documented and supportive mitigation study report that strategically addresses the key mitigating factors for judges and juries to consider.
Testifying in a professional capacity in support of the mitigating evidence in the sentencing portion of a trial.
How does Defense Counsel use a Mitigation Report?
A mitigation report is the complete history of the defendant’s life experience that helps a judge or jury see the defendant as a human being, and not as a criminal. It is presented as part of defense argument. It highlights those life events that shaped the defendant and accounts for how the defendant came to be where they are today. It accounts for the defendant’s anger that resulted in the crime, their life events and difficulties, their positive and also demonstrates options for the future.
How is a Mitigation Investigation Conducted?
A mitigation investigation is research into the past. It is a collected history of the defendant’s life, starting from birth through early childhood, school days and adolescence, tracing significant factors that might have effected the defendant’s physical, social, emotional and psychological development. The purpose of collecting this information is to help judges and juries see the defendant as a person with a unique life, and a family history, coming from an environment that influenced how they came to where they are, and not just as a criminal.
A mitigations Investigator is an expert in the process of conducting structured, fact-finding interviews, and collecting the relevant information, delving into the important details and experiences of the defendant’s life.
The mitigation report is a well organized and well articulated presentation that highlights the defendant’s positive past attributes, their abilities, their contributions, as well as pointing out possible physical or emotional limits or disabilities which the defendant is dealing with.
The goal of the mitigation report is to provide a truthful accounting to the judge or jury of how did this defendant come to commit the crime. It is not meant to justify the crime, rather to provide a comprehensive explanation of how the individual came to be where they are, and to point out how their limited choices and past personal experiences contributed to the situation.
It focuses on the person, not on the criminal act, and balances the criminal act with the positive efforts, including remorse and restitution.
Preferred Solutions uniquely well designed mitigation report presents the mitigation evidence in a strategically formatted, organized and accessible fashion, to aid the judge or jury in consideration of all mitigating factors that inform their decisions.
When Should Defense Counsel or a Defendant consider engaging the Mitigation Investigator?
Mitigation investigations should be conducted in all homicide cases, regardless of the penalty associated with the charge.
Mitigation investigations have also been valuable in cases of sex offense charges.
The most effective use of a mitigation specialist is to include them right from the beginning of the case as part of the defense team. A comprehensive mitigation report takes extensive research and investigation. Time is needed to identify, request, collect and review documentation of the defendant’s early life, including medical, educational, mental health, judicial and incarceration records. Investigations include interviews of family members and other key contacts.
A mitigation specialist is a cost effective strategy to build up defense material. Many lawyers are surprised that when they are retained on a case to find their clients are willing to support the cost of a mitigation investigation, especially when the specialist’s time is less expensive than defense counsel.
Avery & Associates Mitigation Investigator Services assist Defense Counsel in every step of preparing the case.