What Is Mitigation In A Criminal Case In Arizona?

Today we’re talking about an important concept in criminal law that a lot of defense lawyers ignore for some stupid reason. It’s called mitigation.

Mitigation can be the difference between a good outcome and a bad outcome in a criminal case, and so today we’re going to talk about it.

What is mitigation?

Mitigation is information, it’s material, that is not directly related to the case itself, so if somebody’s charged with a crime, mitigation material doesn’t necessarily have anything to do with the crime itself.

So let’s say for example, somebody’s charged with a DUI. Any of the mitigation information is very unlikely to be related to the facts of the DUI case, things like whether there was a good traffic stop, whether the officer is on the Brady list, whether they drew blood properly. Any of those issues are legal issues, and we’ll talk about those in a minute, but mitigation relates to the human. It relates to the person who’s being charged with the offense, and the important concept here is to really identify other aspects of a person’s life that clearly explain who that person is as a whole person, as a whole individual.

Most people, when they’re charge with crimes, it’s a one-off event. It’s one bad night, it’s one bad fight, and we really want to emphasize that there’s a lot of other things going on in that person’s life.

There’s a lot of other value there, and that’s what we’re trying to do with mitigation.

What are some examples of mitigation?

I have them written out here, and I’ll briefly touch on them, but one of the big ones is family support.

So a lot of people don’t have a lot of family, unfortunately, and it’s not something that they can rely on. Courts and prosecutors, they like to see that people are going to have support, they’re going to have a place to live, they’re going to have somebody to help them enroll in a treatment program. They have some sort of support, so family support is a good mitigator. Other things like community involvement.

So if somebody’s charged with a crime, are they doing other things to help the community?

Maybe this was an offense against the community, but in the rest of their lives, are they doing other good things? Are they volunteering? Are they attending a church? Are they contributing in some other meaningful way?

That’s where we’re looking at with community involvement.

With treatment, so this is important in substance abuse crimes or DUIs. Is a person going through treatment? Are they recognizing, hey, I have a substance abuse problem, I’ve been going to AA, I’ve been seeing a substance abuse counselor, I’ve been on detox medication. Are they going to treatment? That’s a good indicator that this person is being rehabilitated, and so it doesn’t have anything to do with the underlying case, but it does show that this person’s making changes in their lives, and that’s good mitigation.

Same with whether they’ve had any suffering or loss.

So a lot of the times, criminal offenses will really come about as a result of something tragic happening in somebody’s life.

Somebody will be very depressed because they’ve lost a loved one or somebody was killed, or, really bad things can happen in people’s lives. If somebody has suffered, or experienced a tragic loss like that, that may be a good indicator that this person had a bad night as a result of that loss, they were suffering.

They were going through something very traumatic, and so you can use that when you’re explaining to prosecutors or to judges, and say, judge, this person was in total grief at the time because of this tragic loss. And so that’s also good mitigation.

The next thing that’s important is job and career.

Courts and prosecutors, they want to see that somebody is a good employee, somebody who is an active member of society in terms of having a career, they are producing things, they are a good trustworthy employee, they have bosses or employees who rely on them, and so you always want to make sure that you’re covering that.

You want to know where a person’s working, how long they’ve been working there, whether they’re a good employee or not, whether they have anybody there who’s going to vouch for them or their character, that’s also good mitigation.

Collateral matters, so this is a topic that is pretty broad, but collateral matters are where we’re talking about other things that could impact a person as a result of a criminal charge.

Things like immigration, things like security clearances, or military involvement, which is the next one, things that, if a person is convicted, it’s going to have a sort of imbalanced effect on them, whereas it may not have that same effect on somebody else.

So having a criminal conviction may not matter to somebody who is in a certain profession, but it may be catastrophic for somebody in a different profession. And so you want to bring that attention to the judge, and bring that to the prosecutor and say, look, we understand this happened, but here’s what we’re trying to do and this is why.

That’s good mitigation. As I said, military service is always good mitigation. It’s to say, this person served, they were on tour, they served several tours of duty, and so they have a sort of a different world view than the rest of society, and that may be some way that you can explain to the prosecutor or the courts and say this person has seen things that you and I have not seen, and so that’s good mitigation.

They’re operating sort of out of a different mindset with other world experiences.

Same with abuse. If somebody’s been abused, if they have a history of abuse, that may cause people to kind of break mentally, and that can be good mitigation. Same with any mental issues or disabilities.

Of course, you want to bring these to somebody’s attention, or to the prosecutor’s attention, and say, this is something that was impactful. This helped cause the crime, but it wasn’t directly related to the crime, but it was something that we have to consider. We have to explain that to put the whole situation in context.

And finally, another one is licenses, so professional licenses, a doctor, a nurse, a school teacher, a lawyer, people who have special licenses.

Those may be in jeopardy. You want to make sure that those are brought to everybody’s attention as well.

These are just a few of them. We have a very extensive mitigation process that we run through with our clients, and it’s very, very comprehensive on each one of these little kind of nuggets that I put in here.

So I want to make very clear that mitigation alone is not going to generally result in any good outcome in your case, so you can’t bring all of this stuff in to the prosecutor and say, look at this stack of materials that I have.

Please dismiss my case. They’re going to say, that’s nice, but you still, the facts of the case haven’t changed.

You still did X or you did Y, and so what you want to do is find legal or factual problems with the case, and then the mitigation is sort of the additional material that helps tilt the scale a little bit.

So if a prosecutor is going to be arguing with you on some factual issues, or some legal issues, you can say, look, these are our positions on these issues, legally and factually.

But in addition to that, look at all of this stuff. Look at all of these other extenuating circumstances that surround this person’s life, and that may be what is able to tip the scale on there.

One other point, going in to the prosecutor’s office, or saying, hey, this was my first offense, and I’m a good person, is not good mitigation.

Most people are first time offenders, and so that is not on that list, as you’ll notice. You’ll see I didn’t put first time offender on there.

Now it is important that you’re a first time offender, or if you’re not, if you have a prior, you want to distinguish how long ago that prior was and separate that out, but just being a first time offender alone, a prosecutor’s very rarely going to look at that and say, oh, all right, we’re going to dismiss your DUI.

Just doesn’t happen. So again, there’s a lot of things that we can do with mitigation. It is a very important part of the process.

We believe it’s critical to every criminal case that we work on, just because we’re representing people, we’re not representing one person on one night charged with a crime.

There’s a lot more to everybody than just one bad situation.

So if you have been charged with a crime, if you want to speak to our office, we can run you through the mitigation process and what that looks like in more detail.

We offer free case evaluations. Look forward to speaking with you.

Thanks for watching.