How to Submit a Mitigation Video in Federal Court

A sentencing mitigation video can give the court information about a defendant's history, character, family, circumstances, rehabilitation, and community that may be difficult to communicate fully through a sentencing memorandum and character letters.

Federal sentencing law gives courts broad latitude to receive information relevant to sentencing. Under 18 U.S.C. § 3661, there is generally no limitation on information concerning the defendant's “background, character, and conduct” that a federal court may receive and consider when imposing an appropriate sentence.

Similarly, 18 U.S.C. § 3553(a) requires the sentencing court to consider, among other things, the nature and circumstances of the offense and the defendant's history and characteristics.

That does not, however, mean there is one nationwide procedure for submitting a video.

Start with the sentencing strategy

A mitigation video should ordinarily be developed in collaboration with defense counsel rather than independently from the legal presentation.

The American Bar Association's Criminal Justice Section has described sentencing videos as a collaborative effort among the client, defense attorney and video producer to identify significant mitigating factors and determine which people can best explain and substantiate them. The ABA article describes the video as a supplement to, rather than a replacement for, the sentencing memorandum and character letters.

That distinction matters.

The objective is not simply to produce a biography of the defendant. The video should support the themes counsel has determined are relevant to sentencing.

Depending on the case, those themes might include childhood circumstances, family responsibilities, trauma, addiction and recovery, employment, community relationships, rehabilitation, remorse, or changes made since the offense.

Determine the court's submission procedure

There is no universal federal procedure that says, in effect, “upload the mitigation video here.”

Federal courts maintain local rules and individual electronic-filing procedures in addition to the Federal Rules of Criminal Procedure. The Administrative Office of the U.S. Courts specifically directs practitioners to individual courts' local rules and procedures for electronic filing.

Video presents an additional issue because CM/ECF procedures are primarily designed around documents.

For example, the District of Maryland requires a party seeking to submit exhibits that cannot be converted to PDF, including video, to obtain leave of court and provides specific procedures for physical electronic media and accepted formats.

Procedures therefore need to be checked for the particular district and, where applicable, the assigned judge.

Counsel should determine:

• How the video should be provided. This could involve electronic media, a separate exhibit procedure, leave of court, or another method specified by the court.
• Whether it should accompany the sentencing memorandum. Counsel may need to identify the video as an exhibit or otherwise alert the court to it.
• Whether leave of court is required. A court's electronic filing system may not accept the video itself.
• Whether sealing or redaction is appropriate. Mitigation videos frequently contain sensitive information involving medical history, children, family members, addresses or other private matters. Federal electronic filing rules contain specific privacy requirements, including restrictions concerning personal identifiers.
• When it must be submitted. Local rules, scheduling orders and individual judicial practices can establish sentencing deadlines beyond the national rules.

Coordinate the video with the written submission

The video and sentencing memorandum should work together.

If the memorandum describes an important period in the defendant's childhood, for example, a parent or sibling may be able to provide firsthand context.

If rehabilitation is central to counsel's argument, people who have actually observed that change may be more useful than someone offering general praise.

The ABA's discussion of sentencing videos similarly emphasizes meaningful stories illustrating the client's character rather than attempting to create an elaborate documentary.

Keep the court's role in mind

Federal Rule of Criminal Procedure 32 expressly gives defense counsel an opportunity to speak on the defendant's behalf and requires the court to permit the defendant personally to speak or present information in mitigation before sentence is imposed.

A mitigation video does not replace either function.

It is another way of organizing and presenting relevant information for the court's consideration.

The practical takeaway

Before production begins, counsel and the mitigation-video team should establish the sentencing themes, identify appropriate interviewees, determine what supporting material can properly be used, and confirm the submission requirements of the particular court.

The production should follow the legal strategy, not the other way around.