FAQ: What Is Mitigation In Criminal Defense Cases?

Mitigation is an often misunderstood topic because, in general, clients are focused on trying to get out of hot water but don’t know how, or they’re completely focused on whether they actually “did it” or “didn’t do it.” Or even if they did commit a crime, they’re often too focused on “I did it, but it didn’t happen the way the police are claiming.”

So people charged with crimes are often way more focused on the facts. In reality, though, 95 out of 100 cases never go to trial, and honestly, maybe even more than that. As much as I hate to say it, the facts are not nearly as important as they appear to be to folks who aren’t working in criminal defense all day, every day. It’s more about: how much do you care about the case, and are you willing to put in work to get a good result?

That’s the biggest difference in the way that a layperson will look at a criminal case versus the way a professional will. Defendants are looking at their criminal case in terms of saying: “I didn’t do it! I didn’t do it!” or “How do we get this to go away as fast as possible?” And I have to tell them, “Slow down, let’s take this one step at a time,” and “let’s focus on taking some proactive steps—whether you did do it or not—to show a good faith effort in our defense.”

Something most people don’t know is that all of our negotiations and even my emails to a district attorney are not admissible in trial. So during my attempts to resolve or negotiate with a district attorney, I might even admit: “Yes, okay, my client made a mistake.” But again, even if we do end up going to trial, none of that is admissible. So any admissions of guilt used in the negotiation process or attempts to resolve are inadmissible evidence at trial.

So even if my client remains steadfast in not having done anything wrong, there’s no harm in letting me continue to negotiate with the prosecution. I’m not going to say, “my client is steadfast in his innocence and is not accepting any responsibility for his actions. He didn’t do anything wrong.” I might instead say, “My client feels terrible about this; you can see his remorse because he wrote this letter to the judge, and he’s taking domestic violence classes, etc.” When I have clients that are charged with a DUI, I immediately explain what mitigation is and how they should start proactively taking action like this right away.