Rethinking Conferral:

Measuring Victims’ Rights by Their Ability to Be Heard

By: Meg Garvin, MA, JD, MsT

Often in victims’ rights work, we hear the question: “Did the prosecutor confer with the victim or the victim’s family before the plea?”

While this is certainly an important and well-intentioned question, this framing often misses the larger point of victims’ rights. The right to confer is essential, but it is generally not an end in itself when it comes to plea agreements. Instead, it is a means to an end, enabling a victim to meaningfully exercise their right to be heard by the ultimate decision maker – the court.

This issue came to the fore publicly in the high-profile prosecution of Bryan Kohberger, charged with the murders of four University of Idaho students. As reports circulated last week about plea negotiations and whether the victims’ families have been kept informed or consulted, numerous media outlets contacted NCVLI to ask about whether the victims’ right to confer had been afforded.

The inquiries had one of two foci: (1) whether prosecutors did enough to inform families or get their “input” on a possible plea deal, or (2) whether a victims’ right to confer did or should afford them a veto over plea offers.

Crime victims across the United States have the right to confer with the prosecution in a criminal case. Sometimes this right is in the state constitution, other times it is in a statute.¹ The right to confer is about sharing information, concerns, and perspective with the prosecution.

Importantly, however, it is more than that. It is also about gathering information from the prosecution so that the victim or the victim’s family is empowered to speak from a position of knowledge at future hearings directly to the court.

Why does this matter?
The ultimate decision-maker in pleas is not the prosecutor; it is the court.

Prosecutors negotiate and present pleas. But it is the court – that is, the judge – that accepts or rejects the plea. And the test for the court is to assess whether the plea is in the “interests of justice.”

The right to confer with the prosecutor is most meaningful when it positions the victim or the victim’s family to exercise another of their rights – the right to be heard before the court decides whether to accept the plea.

Conferral is the process that allows a victim or their family to both share their perspective and gain a full understanding of the information presented at a change of plea hearing. This enables them to clearly express to the court how the proposed plea impacts their dignity and whether they believe it serves the interests of justice.

When the right to confer falls short of this, not only are victims’ rights undermined, but so too is the court process, as courts are left without a full picture.

Thus, the real test of victims’ rights is not whether the conferral box was checked or whether the victim persuaded the prosecution of a position. Instead, it’s whether conferral was meaningful enough to enable the families to be heard by a court in a way that assists the court in its duty to determine whether justice is being served.

In re-centering our questions around the victims’ right to be meaningfully heard, we shift focus from prosecutorial gatekeeping to the broader purpose of victims’ rights: to ensure justice systems treat victims and their families as participants, not mere pieces of evidence. That is the measure of meaningful rights.

1 See generally Nat’l Crime Victim Law Inst. (NCVLI), Ten Common Victims’ Rights (2023), https://ncvli.org/wp-content/uploads/2024/02/Common-Victims-Rights_final.pdf.