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What are mitigating and aggravating factors in a criminal case?

On Behalf of | Nov 17, 2022 | Criminal Defense

Sometimes, the evidence in a criminal case is so compelling that a conviction may be inevitable. However, that doesn’t mean that your defense team is done with their work.

Once there has been a conviction, the defense focus usually turns toward securing the minimum sentence possible – while the prosecution usually aims to secure a much higher penalty. This is where mitigating and aggravating factors become important.

What is a mitigating factor in a criminal case?

A mitigating factor is anything that would tend to encourage the court to show some leniency toward you during sentencing. The court is generally free to consider anything that it finds relevant, from your demeanor in court to the way that you behaved in pre-trial detention, but mitigation generally falls into two different categories:

  1. Positive mitigation: These are things that showcase your good qualities. For example, maybe you have been a loyal employee who has never broken your employer’s trust, or the fact that you are a good provider for your family and a good parent to your children. It can also include things like community services or charity work that you’ve performed and expressions of remorse for your actions.
  2. Negative mitigation: These are things that tend to create sympathy for your situation and sometimes offer explanations for your behavior. For example, maybe you suffer from an addiction that spurred you toward theft, or you suffered from an undiagnosed mental illness, like bipolar disorder, that caused you to make poor financial choices and led to embezzlement in a period where you were delusional.


What are aggravating factors?

The flip side of this is that the prosecution will typically look to present any factors they think may serve to influence the court in the other direction, to make your sentence stiffer. Typically that includes things like:

  • A previous history of criminal convictions, especially those similar to the current offense
  • The physical, emotional or financial impact of the crime on the victims
  • Whether the crime itself was particularly cruel, violent or pre-planned

If you’re facing serious criminal charges, thinking ahead about any mitigating or aggravating factors can be important, even in the early stages of your defense. Sometimes, those factors even become part of your defense strategy.