Priming the "Judging Brain": The Case for Always Using a Mitigation Film in Criminal Defense Practice
Here are some things people have said to me over the years about Mitigation Films
"Only a few cases are suitable for a mitigation film"
or
"This client shouldn't be on film. He could say the wrong thing and it might hurt our case."
or
"We only do films when there is a really compelling reason to make one."
And here is the bottom line. Every one of these opinions is wrong and there is a very simple biological reason for this. The human brain reacts differently to a strange vs. a familiar face. And since a human brain will be evaluating your client and deciding his or her fate, it is important to consider how this particular organ functions, n'est-ce pas?
Our brains like familiar things,” said Dr. Piotr Winkielman, a social psychology researcher at UC San Diego's Department of Psychology. “They tend to be safer — if I see something again, it hasn’t eaten me yet. They’re also easier for us to process — and our lazy minds appreciate that. What’s remarkable is that our brain’s positive reaction to familiarity bleeds over to the seemingly objective assessment for how good something is. This means that observers can end up being honestly convinced that a familiar politician’s face is genuinely friendlier or that a familiar song or product is truly better.”
Typically mitigation films are submitted to a judge well before sentencing. They have a chance to sit and watch the client's face, often in close up for up to 20 minutes at a time. In that 20 minute window they may see the client discuss aspects of themselves, their families, their childhoods. Even details that may not be considered classically "mitigating" will be key to this very crucial familiarization process.
Familiarization. Humanization. I use the terms interchangeably but this is a key part of the work we do as mitigation filmmakers. We force the viewer to contend with the human universe sitting before them at sentencing. Or at the parole hearing.
The judge has seen them on paper. She has seen them at arraignment. Perhaps at trial. But has she really been forced to contend with the entirety of their humanness? From her bench can she really see their tears as they discuss their disappointment in their lives, in themselves, in their past actions? Do we not owe clients a more intimate space to express themselves? Away from the theater of the courtroom where their words may resonate more organically? More authentically?
There may be exceptions, of course. There will always be the stone faced homicidal psychopath determined to pay his dues where things are probably best left to a simple psych eval and an MRI.
Everyone else should be given a shot to let the judge get to know them as a person.
