Part of the defense, especially in serious criminal trials, consists of mitigation evidence. Expert testimony can be critical in criminal trials, especially when a defendant's life hangs in the balance or when they face the possibility of a significant period of incarceration. There are three types of mitigation evidence that may be helpful in influencing a jury's decision.
Evidence of brain damage does not absolve the defendant of their responsibility in the crime, but it may persuade a jury to give the defendant life in prison as opposed to death in capital murder trials or a less lengthy prison sentence. Brain damage can be organic, such as problems occurring during fetal development or complications that occurred during delivery, or damage can occur after an accident. This type of evidence relies on imaging tests, such as CT or MRI, and there may be additional evidence of problems provided by expert testimony from a neurologist or neuropsychiatrist who has done additional testing.
The use of severe mental illness as mitigation can be challenging, since some people may believe the defendant is feigning problems just for trial. A defendant with significant mental illness will likely need a strong history of problems, such as records from mental institutions, psychologists, and psychiatrists for mental illness to be a viable mitigation. When mental illness is proposed, both the defense and prosecution may want to examine the defendant and reach their own conclusions about whether there is a mental illness present or if the defendant is malingering.
Additionally, the determination about whether the problem is treatable can also affect the jury's decision about punishment. Regardless of the conclusions, there is always the risk of creating a double-edged sword. Mental illness that is deemed treatable can cause a jury to feel like the defendant is more culpable for their actions, but mental illnesses that may be more treatment-resistant could also cause the jury to render a harsher punishment since the problem cannot be managed.
A defendant's past, as documented by sessions with a forensic psychologist and corroborated by witnesses, can provide significant mitigation evidence in some cases. Typically a traumatic upbringing involves instances of neglect and/or abuse. The defendant may have lived in a household with drug use, or they may have been in the foster care system. Sometimes there is a pattern of delinquency from an early age, such as skipping school, fighting, or theft, which may be seen in school or foster care records, or in some cases, part of a juvenile record. Instability, abuse, and neglect may be viewed as mitigation, especially in serious crimes committed by young adults. Depending on the crime, the jury may feel the defendant deserves a second change to turn their life around due to their traumatic upbringing.
Presenting mitigation evidence as part of your defense can sometimes reduce the severity of punishment if you are found guilty. A defense lawyer who thoroughly prepares for the case at hand will often hire forensic psychologist expert witnesses to give their client the best defense possible.
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