SENTENCING THEORIES & STORYTELLING

Bill Raymond, Assistant Federal Defender

Tim Burdick, Assistant Federal Defender

What Sentencing Should Not Be

DO YOUR HOMEWORK

• Know the law• Options Available• Cases that Support Your Argument• 18 U.S.C. 3553(e)

• Know the Statistics• Recidivism Statistics• Sentencing Statistics

• Know Your Case• Client Hstory• Supporting Information/Records• Presentence Report• Expert Analysis

Know Your Client’s Goals

SENTENCING THEORY

• Summarizes the factual, emotional and legal reasons why the court should impose the sentence you want

• Tells your client’s story of mitigation, rehabilitation, or reduced culpability, and it resolves problems and questions the judge may have about imposing the sentence you want

FACTUAL

• Facts Important We Introduce• Lack of criminal record• History of non-violence• Takes care of family• Other good deeds

• Facts We Must Neutralize• Had a Gun at the Ready• Fired four times• Prior acts of violence

• Takes Into Account All Facts of Client’s Life

EMOTIONAL

• Tells a moving story that explains why your client should get the sentence you are requesting.

• It makes the Judge want to give the result you are asking for

LEGAL

• Guidelines• Interpretation• Deconstruction• Statistical analysis

• Statutes• Caselaw

RESOLVES PROBLEMS & QUESTIONS FOR JUDGE

• If I let him out, will he do it again• If I send her to jail, how long should I keep her

there• How can I justify my sentence to the public

TELLS A STORY

• No different than trial practice• The most persuasive way to convey your message is

through a story• The memorable way to convey your message is

through a story• The most interesting way to convey your message is

through a story

• These principles can apply to judges & prosecutors the same way they apply to jurors

STORYTELLING AT SENTENCING

• Know Your Audience• Know The Elements of a Persuasive Story• Know Your Tools – Telling Your Client’s Story

KNOW YOUR AUDIENCE

• Judge• Prosecutor

PROSECUTOR JUDGE ALL IN ONE

PROSECUTOR

• Mandatory Minimums• Personality/Persuasive

• Ask them what they want to know/hear• Let them talk to people directly

• Judge

JUDGE

• Personality• Persuasive

• Guidelines & Statistics• 18 U.S.C. 3553(a)• Straight Mitigation

ELEMENTS OF A PERSUASIVE STORY

• Solid Story

• Compelling Characters

• Integrated Presentation of all of the Mitigating Evidence

• Emotionally Evocative Images

SOLID STORY

• Solid Story is Unique

• Solid Story is Streamlined

• Solid Story is Moving

• Solid Story incorporates Small Stories to tell a Big Story

COMPELLING CHARACTERS

• Main Character – Client

• Get insight into who the client is

• Get insight into how the client interacts with others

• Supporting Characters – People Who Know Him/Her

• Incorporate best testimony from large groups of people

• Incorporate best testimony in a short time

INTEGRATED PRESENTATION

• Incorporate all of your Mitigating Evidence

• Client’s Statement

• Witnesses Statements

• Records

• Experts

• Photos

• Not limited by the Federal Rules of Evidence

EMOTIONALLY EVOCATIVE IMAGES

• Figuratively• Specific, detailed stories from witnesses

• Literally• Photos• Videos

TELLING YOUR CLIENT’S STORY (KNOW YOUR TOOLS)

• Live Witnesses

• Photos

• Video

• Sentencing Memorandum

• Letters/Reports/Statements

LIVE WITNESSES - EVALUATION

• Evaluate Information Witness Provides• Better for Live Testimony v. Statement v. Letter

• Special Concerns with Client• Post Trial• Better for Live Testimony v. Statement v. Letter

• Expert Witnesses• Type (Mental Health/Sub Abuse/Sex Offense/Other)• Better for Live Testimony v. Report v. Letter• Provide with Information/Ammunition Necessary

LIVE WITNESSES - PREPARATION

• Always Do It

• Avoid Narratives – Do Questions and Answers

• Craft the testimony to further your theory

PHOTOS

• Pictures Give Life to Your Words

• Provide Candid Snapshots of Who Your Client is Outside of the Courtroom

• Able to Show Your Client Over Long Periods of Time

• More Persuasive because not produced solely for the purpose of sentencing

VIDEOS

• Primacy• Editing of Lay Witnesses• Integrated Presentation• Break up Individual Witnesses

SENTENCING MEMORANDUM

• Primacy• The Law• Statistics• Prime the Court for Sentencing Hearing

LETTERS/REPORTS

• No Cross• Primacy