Consulting the Victim about a Plea Offer

The Victim Rights Act requires DAs to consult victims “prior to any prefile or post filing diversion offer, prior to any disposition of the case, or prior to any trial of the case, and the right to be informed of the final disposition of the case.” C.R.S. § 24-4.1-302.5(1)(e). Although the Victim Right’s Act doesn’t expressly require it, best practice is to consult a victim prior to making any offers in a domestic violence case, including dismissal. Generally speaking, the process should include:

1. 1. 1. Crafting a “pre-VRA” offer, sometimes after speaking with the defense counsel but most of the time before speaking with defense counsel. This offer should be broad enough to permit flexibility in negotiations with the defense counsel without needing to consult the victim again about minor changes.

For example, instead of “plead guilty to Assault 3 (M1)—DV, 12 months probation, 21 days jail as a condition of probation, DV evaluation and treatment, 35 hours of community service, fine of $250,” craft something with more flexibility like “plead guilty to Assault 3 (M1)—DV, 12 months probation, 0-45 days jail, 0-45 hours community service, DV evaluation and treatment, and a fine.” Or if the judge doesn’t accept stipulated sentences, or you prefer to keep things simple and efficient, consider crafting something like “plead guilty to Assault 3 (M1)—DV, judge to sentence.” Just keep in mind you should consult the victim about your sentencing recommendations too, not just the offer itself.

1. 1. 2. “VRAing” that offer to the victim, which, depending on the office, often includes a victim advocate, the DA on the case, or both calling the victim to consult that victim about the offer. Be clear with the victim that the offer involves a range of possibilities so you can have the flexibility to negotiate with defense counsel.
      3. Staying away from discussing case facts given the absence of an investigator on the call.
      4. Writing notes about the victim’s thoughts so you don’t forget what the victim said and so you can inform the judge of the victim’s position when you announce the plea deal to the judge in court.
      5. Sometimes, but not always, modifying the offer after taking the victim’s perspective into consideration.
      6. Conveying the “VRAed” offer to defense counsel.
      7. Negotiating that offer within the parameters of what you “VRAed” with the victim.
      8. Once you have reached a final resolution, notifying the victim of that resolution.

You should tailor this process to the case and the victim. Some victims require numerous consultations, including in-person meetings, sometimes at a place of their choosing. Some don’t want to speak with you and will refuse to accept your calls or meet with you. You need to meet the victim “wherever they are,” so-to-speak. And even if the victim refuses to cooperate, you are still obligated under the VRA to try to consult them before the resolution of the case. This means you must make a good-faith attempt to consult them. Calling their phone once and leaving a single voicemail is probably insufficient to constitute a good-faith attempt unless you have good reason to believe that is an effective way to communicate with that victim.

Because victims in domestic violence cases often request prosecutors reduce the charges or dismiss the case, it is not uncommon for prosecutors to stick with their “pre-VRA” offer after consulting the victim. The decision to modify or proceed the pre-VRA offer in light of the victim’s requests is entirely up to the prosecutor and their office’s policies. Adhere to your office policies, exercise your best judgment, and don’t be afraid to reconsider your pre-VRA offer if the victim’s request to modify the offer is reasonable under the circumstances. Sometimes a prosecutor granting a victim what they want is exactly what a victim needs, even in cases of domestic violence.

Guide to Your First Plea Conversation with a DV Victim

Plea conversations with DV victims are often some of the hardest conversations for new prosecutors. Here are some general recommendations for how to handle a meeting or a phone call. These are similar to the recommendations in the Protection Orders and Bond section when meeting with the victim about modifying the protection order.

1. 1. 1. Before you meet, consider the victim’s past statements and whether they will be cooperative or recant. If the expect the victim to recant or minimize or make inconsistent statements, do your best to bring along an investigator to be your witness.
      2. Introduce yourself and anyone present for the meeting from your office. If you must record the meeting, be upfront about it. Remember that recording a meeting can change the victim’s demeanor and level of honesty in the meeting.
      3. Lead with authenticity, kindness, and honesty. Show them compassion and respect, but not pity.
      4. Clearly state, early in the meeting, that you are the one prosecuting the case, that you have reviewed all of the evidence, and that it is your job to decide how to proceed. This establishes your authority and relieves the victim of the burden of making decisions in the case.
      5. Let them know that you will not be discussing case facts or what happened during this meeting, and that this meeting is about how to resolve the case.
      6. Listen carefully to what the victim wants—and carefully consider it. Prosecutors do not always know what’s best for a victim even when the victim is stuck in a cycle of abuse.
      7. Sometimes it’s best to go into the meeting with a range of possibilities that you find acceptable and then tailor the offer to what the victim wants.
      8. It’s ok to custom-tailor a deal to the victim’s wishes when meeting with the victim if doing so is consistent with what you had already planned to do. It’s also ok tell the victim you’ll think about and consider what they are saying and let them know later what you decide.
      9. Thank the victim for speaking with you and ask if there are any other ways you can support them. Connect them to resources they may need, such as housing, child-care, job assistance, therapy, etc.
      10. Speak with your investigator about documenting and discovering what the victim said during the meeting or call to make sure you comply with Brady and Rule 3.8.
      11. Once you decide on a plea offer, inform the victim. Do not surprise them with your decision when you announce it to the judge in court.

You may wish to shadow more experienced prosecutors in their meetings or phone calls with DV victims before you have your own. For especially difficult cases, you may consider bringing a more experienced prosecutor with you to your first plea consultation. You can lead the meeting and the more experienced prosecutor can assist if anything tricky happens. Afterward, ask the more experienced attorney for feedback. Observe and learn from the more experienced prosecutor, but remember that no two prosecutors handle meetings with victims the same way.