Advantages and Disadvantages to Proffer Agreements in a Federal Criminal Case

A proffer agreement is a written contract between a federal prosecutor and a criminal defendant or someone who is under investigation, in which the person agrees to provide the government with helpful information about crimes with some assurances that they will be protected against prosecution.  Proffer is also sometimes called “Queen for a day.”

Proffer sessions are usually used for white collar crime investigations. Once you enter into one of these agreements you will proffer information orally in a session attended by you, your attorney and the Assistant U.S. Attorney (AUSA) and one or more federal agents involved in your Federal criminal case.

To be involved in a proffer session one must be either a subject or a target. A subject means that the law enforcement agency is on the fence with you regarding the case. Thus the information given at the session could turn you into a witness or a target. A target means that they think you are guilty of a crime.

What are the advantages and disadvantages of proffer?

Advantages

• Proffer is almost always a prerequisite to immunity or plea agreement;
• Each side learns some strengths and weaknesses of opponent’s case;
• Ground rules for subsequent working relationship established;
• Government can assess witness for use at trial, thus possibly enhance his/her bargaining position, and
• Early cooperation by witness may entitle him or her to a “better deal,” especially considering the sentencing guidelines

Disadvantages

• May not lead to immunity or plea agreement depending on the quality of the information proffered;
• The witness may concede criminal responsibility for matters that were difficult to prove or were not originally contemplated by the government. In that regard, make sure your proffer is in a hypothetical form and the agreement precludes the use of any admission on your client’s behalf;
• Untruths or omissions of material facts may come back to haunt witness. Witness may be impeached with his or her proffer, he or she may be prosecuted for offenses which he or she refused or failed to proffer, and/or he or she may have his or her other statements used against her/him in trial if the court finds that the untrue statements were a material breach of the immunity agreement.
• The prosecutor may have no real desire to deal with your client and is only seeking information or trying to convince another defendant that your client is cooperating. In that regard if you do not trust the prosecutor, do not proffer anything.

If you have been accused of a federal crime or under investigation, please be sure to consult with an attorney to determine if a proffer agreement is appropriate for you such as the criminal defense attorney Redwood City CA locals turn to.

Thanks to authors at The Morales Law Firm for their insight into Criminal Defense.