Proffer in a Criminal Prosecution: A Negotiation Tactic
In the criminal legal world, the word proffer takes on a special meaning. It refers to a meeting between the defendant, his attorneys, and the prosecution. During this session, the defendant can explain his involvement in the crime.
But why would a defendant do this? Simply put, a proffer may be a good negotiation tool to get a case resolved.
What Is a Proffer?
Generally speaking, a proffer is an offer of proof or evidence in support of an argument. In the criminal legal world, a proffer is a meeting where the prosecution and defense discuss the facts of the case.
Defendant Proffer: When the defendant is present, he will offer information to the prosecutor in exchange for a benefit. What kind of benefit? This usually includes reduced charges, a more favorable sentence, or in some cases a dismissal of all charges. During the session, the defendant will give an account of certain events or criminal activity. Then, there will likely be follow-up questions by the prosecutor and investigator. In some cases, and often in white collar crime investigation, this type of meeting can be with a witness rather than the target of the investigation. For example, the prosecution can use the meeting to convince a witness to cooperate in their investigation.
Attorney Proffer: In an attorney proffer, only attorneys will meet and the defendant will not be there. Often times, this is done in advance of a proffer meeting with the defendant. The defense attorneys will share with the prosecution the defendant’s version of events. They may discuss the case in a hypothetical sense.
Reverse Proffer: A reverse proffer involves the prosecutor describing the evidence against the defendant. This typically takes place when the prosecutor wants to convince the defense of the strength of the case. It can often lead to a defendant accepting culpability or assisting the prosecution in a larger investigation.
Proffer Negotiation Tactics
A proffer session may convince the prosecutor not to bring criminal charges. The meeting may be the best way to clear up an incident and explain the defendant has no culpability. Or, if the defendant has limited culpability, the session can also bring this to light. A defendant may not be as responsible as his co-defendants or others, and the meeting provides him the opportunity to explain this.
The prosecutor may also want the defendant to co-operate with their investigation. For example, if a defendant is a member in a corporation with knowledge of the inner workings of the business, he may be a valuable witness to the prosecution.
Sometimes, the prosecution may have a very strong case. Or perhaps there is a human-interest angle to why the defendant did what he did. If the evidence is air-tight and likely can’t be challenged, doing a proffer session is a good showing of the defendant’s acceptance of responsibility. This may mean a lighter sentence upon conviction.
A proffer session can also back-fire. If it’s the federal government, lying to a federal investigator can mean additional charges. Regardless, lying to prosecutor is likely to not work in a defendant’s favor. The benefits and possible draw-backs need to be carefully considered. But note that the meeting can be a gateway to the best possible outcome in a criminal case.
Proffer Sessions & Immunity
Prior to the meeting, a written proffer agreement between the prosecutor and defendant will be prepared. This is sometimes called a “Queen for a Day” letter. This agreement allows the defendant to speak freely about his involvement or knowledge of a crime. Yet it also limits the prosecutor’s ability to use that information against the defendant.
So called “use immunity” means the prosecution cannot use the statements of the defendant at trial against that defendant. Yet if the defendant lies, the prosecution may be able to use those statements to cross-examine them. Additionally, if the defendant later gives a different version of events, the statements made during the proffer can be used to impeach him.
References:
- Daniel N. Arshack and Matthew Reisman, “Discoverability of Proffer Interview Notes,” New York Law Journal (Feb. 14, 2019). Available at: https://www.law.com/newyorklawjournal/2019/02/14/discoverability-of-proffer-interview-notes-in-new-york/?slreturn=20210731155123 (last accessed Aug. 31, 2021).
- Jodi L. Avergun and Douglas Cohan, “Explaining the Inexplicable: The Perks and the Perils of Proffer Sessions and Best Practices for Explaining it All to Your Client,” 25th Annual ABA National Institute on White Collar Crime (2011). Available at: https://www.cadwalader.com/uploads/books/0a31f986d2926e6929e74e27c97093a8.pdf (last accessed Aug. 31, 2021).