Criminal Justice

Sentencing-mitigation videos portray defendants in a sympathetic light; are they admissible?

The idea first caught on in federal public defenders’ offices. The lawyers submitted mini-documentaries portraying their clients’ lives in a sympathetic light to judges mulling sentences.

Now some private lawyers and investigators have embraced the videos too, using them to supplement sentencing memos and letters of support, the Wall Street Journal (sub. req.) reports. Though the videos are still used in just a fraction of criminal cases, “the word appears to be slowly spreading,” the story says.

Do they have an impact? According to Doug Passon, a veteran assistant federal public defender in Arizona who pioneered the videos, the answer is yes. “The sentences are almost always better than they would otherwise be,” he told the Wall Street Journal.

Passon came up with the idea when he was a law student clerking for a lawyer representing a drug defendant whose wife was dying of lupus, the story says. They recorded the client caring for his wife to show how he was needed at home.

Some judges, however, have refused to consider the videos. Defense lawyers say the videos should be allowed under a federal law that allows convicted defendants to “speak or present any information to mitigate the sentence” to the courts. But some judges have sided with prosecutors, who argue the videos don’t give them an opportunity to question the witnesses who are interviewed.

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