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