conduct interviews with a variety of individuals who
are familiar with the defendant (e.g., parents, siblings,
friends, employers, teachers, therapists), and conduct
multiple interviews with the defendant. In many cases,
it is also critical that the mitigation specialist investigate
the life histories of the defendant’s parents and other
members of their immediate and extended family. Such
information is important with respect to being able to
evaluate both genetic and environmental influences on
the defendant’s development. Given the breadth of the
investigation required, it is recommended that it be ini-
tiated long before the trial is set to begin.
The goal of the mitigation specialist is to compile
information concerning the defendant’s life history that
will offer insight into how the defendant’s life experi-
ences have shaped his or her development. Presentation
of such information is aimed at humanizing the individ-
ual to the degree that the trier of fact recommends a life
sentence. It should be clear, however, that the goal of
mitigation is not to excuse the defendant’s behavior but
instead to explain how an individual can become the
type of person who could be in a position to commit a
capital offense.
Depending on their credentials and the role that they
have been asked to play, mitigation specialists may or
may not testify as to the information gathered. In cases
where they do not testify, the information they gather is
provided to one or more appropriate professionals.
These individuals not only will present the information
to the court but also will be expected to present it in
such a way that it is accessible to the jury. For example,
a psychologist or a social worker may testify about the
defendant’s childhood development, the impact of
childhood abuse, the impact of being raised without a
father figure in the home, and any mental illness he or
she may have experienced. A neuropsychologist may
provide expert opinions regarding the influence of trau-
matic brain injury on the defendant’s functioning, and
an anthropologist or sociologist may testify to the
effects of sociological or economic factors related to
the defendant’s neighborhood that may have influenced
the defendant’s developmental trajectory.
Regardless of who presents the mitigation informa-
tion to the court, recent literature has recommended
that the presentation of such information be structured
on the concepts of risk factors, protective factors, and
resiliency. In brief, risk factors can be described as
events in an individual’s life that have been scientifi-
cally linked to negative outcomes in functioning.
Examples of common risk factors in capital defendantsinclude childhood or adult trauma, childhood abuse or
neglect, poverty, substance abuse, negative peer groups,
cognitive impairment, and a diagnosis of conduct disor-
der in childhood or adolescence. Research has shown
that individuals who have experienced multiple risk
factors during their development are at a greater likeli-
hood of exhibiting dysfunction in multiple domains.
The individuals who are retained to testify about such
risk factors have an obligation not only to deliver their
findings to the court but also to illustrate how those risk
factors influenced the development of this defendant.
To further the defense team’s endeavor of obtaining
a non–death sentence, the mitigation expert(s) should
also discuss the relevant protective factors that the
defendant has experienced. Protective factors can be
described as those events or experiences in the defen-
dant’s life that may have lessened the likelihood that
the defendant would have engaged in violent or dan-
gerous behavior in the past. Examples of common
protective factors include social support from family
and friends, prior involvement in mental health treat-
ments, and financial stability. It is quite typical for an
expert to discuss how the absence of protective factors
negatively affected the defendant’s developmental tra-
jectory and if protective factors were present, why
they did not buffer the defendant against the negative
influence of the risk factors.
The final dimension of mitigation presentation
should include a discussion of the defendant’s lack of
resilience in the context of his or her experience with
risk and protective factors. Resilience refers to the abil-
ity of individuals who have experienced great adversity
to overcome such experiences and live a functional life
in adulthood. Since only a small minority of individuals
who face great adversity during their development actu-
ally go on to exhibit severe dysfunction in adulthood, it
is important to convey to the jury how the defendant’s
unique combination of risk and protective factors, along
with his or her response to them, led to the violent
behavior for which the defendant has been convicted.
To date, research has not found any one strategy that
is successful in all cases, nor has research identified any
one mitigating factor that influences juror decision
making in all cases. On the contrary, it is likely that the
success of mitigation relates to the quality of the inves-
tigation and the presentation of information that is
unique to the case. As such, it would be inappropriate
for defense attorneys and other members of the defense
team to think that there is a template that can be applied
to these investigations. Finally, it should be noted that8 ———Aggravating and Mitigating Circumstances, Evaluation of in Capital CasesA-Cutler (Encyc)-45463.qxd 11/18/2007 12:41 PM Page 8