Aggravating and Mitigating Circumstances

Definition

Circumstances can be either aggravating or mitigating:

Aggravating Circumstance. An aggravating circumstance is one attending the commission of a crime or tort that increases its enormity or adds to its injurious consequences, but which is above and beyond the essential constituents of the crime or tort.

Mitigating Circumstance. A mitigating circumstance is one that alleviates, reduces, abates, or diminishes a penalty or punishment imposed by law. It is not an excuse, but it can be considered in fairness and mercy as extenuating or reducing the degree of moral culpability.

If the general verdict is against the defendant, aggravating and mitigating circumstances are a factor in determining the damage in a civil case and the punishment in a criminal case. In either type of case, FactLogic combines the effects of independent aggravating and mitigating circumstances to provide the overall probability of aggravation. Circumstances can be analyzed only because judgments have been quantified, and FactLogic has reduced them to a single number.

Each circumstance is evaluated by assigning a probability that it is true and a probability of either aggravation or mitigation, given that it is true. A circumstance could be considered to be both aggravating and mitigating, although this would be rare. If you fail to assign probabilities to a circumstance, the analysis is unaffected; that circumstance is simply ignored by FactLogic. All probabilities must be between 0% and 100%.

The result is called the (overall) probability of aggravation. It is between 0% and 100%; a probability of 0% would indicate 100% mitigation, and a probability of 100% would indicate 100% aggravation. The recommended application of the probability of aggravation is this: Determine the maximum penalty or maximum punishment that you believe should be imposed if the overall probability of aggravation is a maximum. Multiply this maximum value by the probability of aggravation as determined by FactLogic.

Aggravating and mitigating circumstances can be determined by a single evaluator (Sections 1) or estimated by multiple evaluators (Section 2).

1. Single Evaluator:
Determine Probability of Aggravation

A single evaluator, such as a judge, can evaluate aggravating and mitigating circumstances to determine the overall probability of aggravation.

Example (Gary and Michael Jones). Two brothers, Gary and Michael Jones, were convicted of robbing a convenience store. Gary had two similar convictions within the last nine years and was on probation. Michael had a conviction two years ago for a DUI but was not on probation. The brothers took all of the store's cash (i.e., $2,067), and Michael "pistol whipped" the 61-year-old clerk after he had given them the cash. A cousin stated that they had planned the robbery for the two weeks. The probabilities assessed by the presiding judge for three circumstances for each defendant are shown in Tables 1 and 2. There were no mitigating circumstances. Determine the overall probability of aggravation for each convicted defendant.

Solution (Gary Jones). Using the probabilities and percentages provided by the judge, FactLogic determines the overall probability of aggravation for Gary Jones to be 85.975.

Solution (Michael Jones). Using the probabilities and percentages provided by the judge, FactLogic determines the overall probability of aggravation for Michael Jones to be 75.129%. Presumably the judge would impose a correspondingly lesser sentence on Michael than on his brother.

2. More Than One Evaluator:
Analyze the Probability of Aggravation

Independent Evaluations. Usually a group of  evaluators should evaluate the circumstances independently (i.e., without communication). However, independence is not always desired; it depends upon the objective:¹

• Determine the Probability of Aggravation. If the objective is to evaluate the circumstances accurately, evaluators should evaluate the circumstances without communicating (i.e., independently).

• Predict the Probability of Aggravation. If the objective is to emulate others (e.g., a jury or a panel of judges), members should evaluate the circumstances by communicating as will others (i.e., dependently).

Determine the evaluators necessary for the statistical analysis that can help you accurately determine the damages or penalty: FactLogic carefully defines the probability of aggravation by computing the average and computing an interval on both sides of the average within which you can be 95% confident that the true probability of aggravation exists.

Example (Carefully Define the Probability of Aggravation). The judge presiding over the robbery trial of the Jones brothers wanted to know the probability of aggravation accurately. He asked four associates to independently evaluate the circumstances for each convicted defendant.

Solution (Gary Jones). The five evaluators (including the judge) evaluated the probabilities of aggravation for Gary Jones to be 85.975, 58.867, 84.971, 73.045, and 94.669%. Using these probabilities, analysis shows that the average probability of aggravation is 79.505%. The judge can be 95% confident that the true probability of aggravation is between 62.263% and 96.747%.

Solution (Michael Jones). The five evaluators (including the judge) evaluated the probabilities of aggravation for Michael Jones to be 75.129, 61.623, 49.920, 55.725, and 57.203%. Using these probabilities, analysis shows that the average probability of aggravation is 59.920%. The judge can be 95% confident that the true probability of aggravation is between 48.138% and 71.702%.

Summary

Aggravating and mitigating circumstances are evaluated to determine the non-economic damages in civil cases and the penalty in criminal cases. List independent circumstances and judge each. FactLogic determines the overall probability of aggravation. This probability is between 0% and 100% (i.e., larger probabilities indicate circumstances that are more aggravating and smaller probabilities indicate circumstances that are more mitigating). The probability of aggravation is to be multiplied by the maximum non-economic damages in a civil case or the maximum penalty in a criminal case. The result is the awarded non-economic damages in a civil case or the penalty in a criminal case. Circumstances can be evaluated by a single evaluator or by multiple evaluators. A great variety of analyses are available from the judgments of multiple evalulators. Their decisions result in accuracy (i.e., permitting a degree of measurable confidence).

Footnotes

¹ To accurately determine the probability of aggravation, judgments should be independent. To accurately predict the dependent judgments of others, judgments should be dependent. Dependent judgments decrease the variance of the probability of aggravation if the correlation is positive (which it would be if communication increases agreement among the evaluators) and increase the variance of the probability of aggravation if the correlation is negative (which it would be if communication increases disagreement among the evaluators).