The idea likely stemmed from personal injury lawyers, who produced what became known as “a day in the life” videos of their injured clients in order to convey to juries what was lost to a person and their family by the negligence of defendants.  Contemporaneously, criminal defense lawyers began submitting pre-sentence memoranda, detailing a defendant’s personal and medical history, combined with letters from friends and family about the defendant.

Now, the two have been combined:

Video may have killed the radio star, but it’s helping criminal defendants spend less time in prison.

Some private lawyers and investigators are attempting to unlock the potential of video in the sentencing phase of criminal cases, supplementing the memorandum and letters of support that are typically used to plead for leniency.

These “sentencing-mitigation” videos exist in a legal gray area yet are already having an effect, reports WSJ’s Joe Palazzolo.

For the time being, it sounds like an excellent idea.  Words usually fail to convey the impact a sentence will have on a defendant’s family.  Nor can they adequately inform a court about the human being before it for sentence, that he is not merely a criminal defendant but a three-dimensional human being, and that his life isn’t comprised of one bad act alone.

But even the introduction of the words “sentencing mitigation” into the video story explains why it’s subject to the “time being” caveat.  As soon as lawyers began using sentencing memos, a cottage industry arose of forensic psychologists who were available for hire to prepare them.  They quickly became formulaic and banal, turning a document that was meant to show the defendant as an individual into a fill-in-the-blanks form.  Just change the name and the rest of the sentencing memo was already written.

There were similar problems with supporting letters, which were almost always a nightmare. People would write all manner of inappropriate things, from certainty of the defendant’s innocence following a plea, to some utterly trivial good deed he did 20 years ago that reinforced what a horrible human being he was rather than justify mercy.  My all-time favorite was a letter from an old friend of the defendant who wondered “how he got away with it for so long?”  It was a great letter, but, alas, didn’t make the cut.

The notion of a video seems to bring the effectiveness of communicating through images to the depth of providing the fuller picture of a real human being.  What’s not to like?

Prosecutors, naturally, aren’t sweet on the idea.

Tristram J. Coffin, the U.S. attorney in Vermont, said he believed the videos are of limited use to judges, offering only an “edited version of the defendant’s life.”

True, but then, they aren’t precluded from arguing this point, and even if the video must be taken with a grain of salt, it still serves a better purpose than no video.

Prosecutors and victims have less of an ability to offer a counternarrative in video form, he said. In the case of a convicted drug dealer, for instance, “it’s hard to represent the tremendous damage his illegal activities caused to many communities and individuals,” Mr. Coffin said.

There is a reason for this, of course, in that generic arguments of harm by drugs fail to bear upon an individual defendant. But then, judges know this, which is why defendants get sentenced to prison rather than awards for being World’s Best Dad.

“The sentences are almost always better than they would otherwise be,” said Doug Passon, a veteran assistant federal public defender in Arizona who is considered a pioneer of sentencing-mitigation videos.

For the last year five years, Mr. Passon has organized a sentencing film festival held at the annual training conference for federal public defenders.

Judge Sessions explained to WSJ why these videos can have an impact. “When you have a video of either a defendant’s life or a victim’s life, it provides context for that life,” he said.

And indeed, context is critical in sentencing.  Defendants are dehumanized by the system, known by the crime with which they’re charged rather than their names. They only exist in the paradigm of the indictment, the overt acts, the prosecutorial jargon used to describe their worst day ever.

But [Judge Sessions] said they’re no substitute for a good legal argument in a sentencing memorandum.

As with the sentencing memos and supporting letters, however, a video is just a tool. It’s only as good as the mechanic using it or the material he has to work with. While you obviously want to present your client in the best possible light, you remain subject to the duty of candor to the court, and can’t go to rent-a-kid and pick out the most adorable one you can afford.  There may well be little of value to put on video, or context that the court would be better off not knowing.

Even when the ability to produce a useful video exists, it remains difficult to craft something that will offer real benefit.  As with sentencing memos and letters, it’s very difficult and time-consuming to create something that is sufficiently unique and informative that it will go beyond the judge’s built-in assumptions and be interesting enough to be read and digested.  As memos and letters became formulaic, videos are subject to the same problem.  There are only so many times a judge can see daddy read Goodnight Moon to his adoring daughter.

If nothing else, the point at sentencing is to differentiate your client as a human being from the mass of other defendants who stand convicted of a crime.  While we know judges want to hear “sincere” contrition, its primary purpose is to soothe the judge’s soul rather than the defendant’s, leaving the judge to feel more merciful about himself than toward the defendant.

Will videos change the sentencing dynamic?  For a time, no doubt, as the judge’s image of the defendant expands beyond the courtroom and the government’s story. But like any tool, it will dull with use.  But that doesn’t mean it still won’t have some edge if done well, used appropriately and carefully crafted to distinguish your client from others.