Are Mitigation Videos Admissible?

“Is a mitigation video admissible?” sounds like a straightforward evidentiary question.

At sentencing, however, the legal framework is different from determining whether evidence is admissible at trial.

Federal courts may consider broad sentencing information

Congress has expressly provided:

“No limitation shall be placed on the information concerning the background, character, and conduct” of a convicted person that the court may receive and consider for sentencing.

That language appears in 18 U.S.C. § 3661.

Federal sentencing law also directs courts to consider the defendant's history and characteristics alongside the nature and circumstances of the offense and the statutory purposes of sentencing.

Rule 32 reinforces the importance of this information.

The presentence report itself is expected to contain information about the defendant's history and characteristics and circumstances affecting behavior that may assist the sentencing decision.

And before sentence is imposed, Rule 32 requires the court to give defense counsel an opportunity to speak and personally address the defendant so that the defendant may speak or present information in mitigation.

That does not create an automatic right to show any video

Section 3661's broad language should not be interpreted as meaning that every proposed video must automatically be viewed by the court or that procedural requirements disappear.

Courts retain authority over their proceedings, and counsel still needs to comply with applicable filing procedures, deadlines, privacy requirements and judicial orders.

The content also matters.

A professionally produced film should not attempt to manufacture facts, disguise disputed assertions as established facts, or interfere with counsel's legal strategy.

A mitigation video is generally supplemental

The ABA Criminal Justice Section has described sentencing mitigation videos as supplements to traditional sentencing materials rather than replacements for character letters or the sentencing memorandum.

That is an important distinction.

The memorandum provides legal analysis.

Supporting documentation provides evidence and verification.

Character letters provide individual perspectives.

The mitigation video can allow the court to hear directly from people who know the defendant and to see relevant aspects of the defendant's life and circumstances.

These tools can complement one another.

What should counsel review?

Before submission, counsel should review the completed film for factual accuracy and consistency with the case record.

Particular care may be appropriate when the film discusses:

• disputed facts;
• the offense itself;
• victims;
• pending charges or investigations;
• medical or psychological diagnoses;
• statements by minors;
• restitution;
• substance use;
• responsibility for the offense; or
• matters potentially inconsistent with the plea agreement or presentence report.

The ABA's practice discussion similarly cautions that discussion of the offense requires care and emphasizes focusing the film on the client's history and characteristics.

The practical takeaway

Federal sentencing law permits courts to consider an unusually broad range of information about a defendant.

But “relevant to sentencing” and “automatically accepted in any form” are not the same thing.

The mitigation film should therefore be created as part of counsel's sentencing presentation and submitted according to the rules and practices of the particular court.