Capital Sentencing/ Capital Mitigation Evaluations/ Sentencing Evaluations

When a defendant is found guilty of an offense, mitigating and aggravating factors may be presented at the sentencing hearing. "Mitigating factors" refer to information about a defendant or the circumstances of a crime that might tend to lessen the sentence or the crime with which the person is charged. "Aggravating factors", on the other hand, refer to information about the defendant of the crime that may make the crime worse than similar crimes. Although the criteria may differ depending on the jurisdiction, mitigating factors may include history of prior criminal convictions, whether the defendant was under the influence of extreme mental or emotional disturbance, the level of the defendant's participation in the crime, etc. Although such evaluations are typically conducted at the request of the defense, prosecutors may also obtain their own evaluator in order to gain an independent assessment or to challenge the findings of the defense expert. Although each case is unique and may require additional testing or evaluation, most evaluations may include the following:

Review of records related to the specific offense (e.g., police records, witness statements)

  • Review of background records and history (e.g., academic records, psychiatric/ psychological treatment records)
  • Background information: social history, psychiatric/ psychological history, medical history, substance abuse history
  • Clinical interview(s) of defendant and defendant's description of the offense
  • Collateral interview with a caregiver or family member
  • Psychological testing (e.g., intellectual and personality assessment)
  • Malingering assessment*
  • Assessment of defendant's state of mind around/ leading up to and during the offense based on interview with defendant and collateral sources
  • Diagnostic impressions
  • Violence risk assessment
  • Conclusions/ summary of evaluation
  • Evaluation of relevant and mitigating and aggravating
  • Recommendations

* Malingering is routinely investigated by the evaluator and additional objective testing may be conducted at the discretion of the evaluator to confirm/ disconfirm a diagnosis of malingering.