Use of Mitigation Evidence
Chapter 9
USE OF MITIGATION EVIDENCE I.
INTRODUCTION Mitigation has been generally defined as the action of reducing the severity, seriousness, or painfulness of something. Mitigation can be used as a verb or a noun. In a practical sense when referenced, it can generally be seen as a manner of risk reduction. When an attorney collects, and uses mitigation evidence, it is a means by which to tell your client’s story and offer an explanation of their action(s), which require consideration by the trier of fact. In defending someone accused of a criminal act, there are three basic premises of your client’s responsibility and their acceptance of same: (1) I didn’t do it, (2) I did it but I had a good reason, and (3) I did it and I am sorry. Generally, when collecting and using mitigation evidence we would be focusing on (3) I did it, and I am sorry, but (2) could become relevant in a situation where the accused may have an insanity or diminished capacity defense, and same is argued during the guilt/innocence phase of the trial. However, in most cases the use of mitigation evidence will be implemented during the punishment phase of a trial. Indeed, if you are offering evidence to reduce the severity, seriousness or painfulness of an act, it is by its very definition punishment evidence, and it is unlikely to have any relevance during the guilt/innocence phase of the trial. However, its limited relevance in the guilt/innocence phase, should not deter you from attempting to offer same at the outset of trial, if the premise of your defensive strategy is “I did it, and I am sorry”. Mitigation can be an art-form to be perfected throughout the trial, that allows us to tell our client’s story from a compassionate point of view, which resonates acceptance of responsibility. The court or jury does not want to hear your client’s excuse(s) for their behavior, but they will listen to your explanation. The use of mitigation can allow you to explain how your client finds himself in his current situation (alleged criminal act), and offer their explanation of what precipitated and led to the manner in which he acted. Mitigation can illustrate to those charged with making a decision regarding your client’s criminal culpability, a rational understanding of your client’s perception of the event(s) which have led to this very time in his life. It is a time of your client’s reckoning and judgment, which if presented and argued successfully, allows the decision maker to consider a fuller explanation of your client’s behavior, and not solely focus on the result. William Shakespeare often incorporated themes of mercy and forgiveness throughout his literary works. In the Merchant of Venice, Shakespeare offers the following quote from his character Portia, who is then presently disguised as the attorney Balthazar, who pleads for mercy from Shylock before the Venetian Court of Justice: The quality of mercy is not strain'd, It droppeth as the gentle rain from heaven Upon the place beneath: it is twice blest; It blesseth him that gives and him that takes: 'Tis mightiest in the mightiest: it becomes The throned monarch better than his crown; His sceptre shows the force of temporal power, The attribute to awe and majesty, Wherein doth sit the dread and fear of kings; But mercy is above this sceptred sway; It is enthroned in the hearts of kings, It is an attribute to God himself; And earthly power doth then show likest God's When mercy seasons justice. Therefore, Jew, Though justice be thy plea, consider this, That, in the course of justice, none of us Should see salvation: we do pray for mercy; And that same prayer doth teach us all to render The deeds of mercy. I have spoke thus much To mitigate the justice of thy plea; Which if thou follow, this strict court of Venice Must needs give sentence 'gainst the merchant there. — The Merchant of Venice, Act 4, Scene This quote is an example of the high esteem that Shakespeare held for those who had compassion and showed mercy. Specifically, this is an example of how Shakespeare presented mercy as a quality which was most valuable to 1