Federal Court Requirements for Mitigation Videos: Why Local Rules Matter

There is no single national technical standard for submitting a sentencing mitigation video in federal court.

Federal criminal proceedings are governed by the Federal Rules of Criminal Procedure, but individual district courts also maintain local rules and electronic filing procedures. The federal judiciary specifically notes that local courts supplement national electronic-filing rules with their own procedures.

For mitigation video, that distinction can be important.

What can vary between districts?

The underlying authority to consider mitigation information is broad. 18 U.S.C. § 3661 allows a sentencing court to receive information concerning a convicted person's background, character and conduct for sentencing purposes.

The mechanics of presenting that information can vary.

Individual courts may have different requirements concerning:

• sentencing memorandum deadlines;
• exhibits;
• electronic media;
• video file formats;
• physical delivery;
• motions for leave;
• sealing;
• privacy and redaction;
• courtesy copies; and
• procedures established by the assigned judge.

The differences can be substantial.

For example, Oregon's criminal local rules generally require electronically filed documents and exhibits to be text-searchable PDFs while separately addressing demonstrative and other exhibits.

Maryland's CM/ECF procedures specifically address non-PDF exhibits such as video and audio and require leave of court for their non-electronic filing.

These examples illustrate why a procedure used successfully in one federal district should not automatically be assumed to apply in another.

Individual judges matter too

Local rules are only part of the inquiry.

An assigned judge may maintain standing orders, courtroom procedures or sentencing practices that affect how materials are submitted.

Counsel should therefore check:

1. the Federal Rules of Criminal Procedure;
2. the district's local criminal rules;
3. the district's CM/ECF procedures;
4. the assigned judge's standing orders and courtroom procedures; and
5. any case-specific scheduling order.

Where the procedure remains unclear, counsel can determine whether clarification from the clerk or chambers is appropriate under the court's rules.

Privacy requires particular attention

A mitigation film may contain unusually personal information.

Federal electronic court records are subject to privacy rules requiring the redaction of specified personal identifiers. The federal judiciary notes that these requirements include information such as Social Security and taxpayer-identification numbers, dates of birth, names of minor children, financial account numbers and, in criminal cases, home addresses.

A production team should therefore avoid assuming that because information is relevant to the story it should appear unrestricted in a court exhibit.

Counsel determines what should be included and how it should be submitted.

The practical takeaway

There is no responsible nationwide answer to the question, “How do I file a mitigation video?”

The better question is:

How does this court and this judge require counsel to submit one?

That should be established early enough that the final deliverable is technically and procedurally appropriate for the case.