When a person is a target of a federal or state criminal investigation, they are often contacted − either directly if unrepresented or through counsel if represented − to attend either a proffer or a reverse proffer with the U.S. Attorney’s Office, State Attorney General’s Office, or County Prosecutor’s Office.

While proffer and reverse proffer sound alike, they are in fact quite different. A reverse proffer is the opportunity for defense counsel to meet with the prosecutor and agents to hear some of the alleged evidence they have against the client. The agents provide a sort of “show and tell” about the investigation and the evidence against the client in an attempt to convince the client to cooperate in the investigation. Cooperate in this setting means plead guilty and provide evidence against coconspirators in the scheme. While law enforcement usually wants the client/target to attend the meeting, often experienced defense counsel will attempt to set a meeting for just counsel to ensure that the client does not inadvertently blurt out information, as many clients find it difficult to sit through these types of meetings without commenting.

Conversely, a proffer is a meeting where the government expects the client to admit and explain their role in the offense and that of any other coconspirators. Before a proffer meeting is scheduled, the client must understand the very limited protections a proffer agreement provides. The agreement only protects the client/target’s direct statements from being used directly against him at trial.

The distinction is best explained this way – if the client simply agreed to speak to an investigator by themselves, anything the client said could be used against them in the prosecution’s case in chief, and is akin to a confession. The investigator could take the stand and testify that the client divulged incriminating information. Under a written proffer agreement, anything said during the proffer by the client cannot be used directly against him at trial.

However, the proffer agreement allows law enforcement to use any information provided by the client in their investigation. They can go and collect evidence or statements from others based upon any information provided by the client. That is called derivative use of the information, and the prosecution can use that evidence notwithstanding the fact that they only learned of it from the client. The client’s statements and information can also be used at trial against the client to impeach his testimony, if he testifies and contradicts what he said in the proffer. The rationale being that the client cannot lie, either during the proffer or at trial. If he does, the jury has a right to know. And perhaps most important, the client’s defense attorney cannot put on witnesses or cross-examine government witnesses in a manner that would contradict what the client said during the proffer.

In rare instances there are occasions where a proffer can be used in an attempt to either convince the government that the client is innocent or has a very limited role in the offense. In most cases, this would be done through an attorney proffer, where defense counsel meets with the government to explain the client’s position.

Agreeing to a target proffer is a very serious step that should only be decided after sufficient facts are known about the case, the potential evidence, and the client’s exposure. Once a client proffers, it is almost impossible to later decide to defend the case at trial. It should never be to “just see what the government has” and talk about the case.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact the firm, call 908.301.9001 for the NJ office and 212.755.3300 for the NYC office, or email Mr. Stahl at rgs@sgdefenselaw.com.

Thanks to television and movies, most people are aware that prosecutors often make deals or agreements with individuals under investigation, wherein the person being investigated is granted immunity from prosecution or a reduction of charges in exchange for providing information to the government. Of course, the details of these negotiations are dramatized for the sake of the narrative; the reality of the situation is far more complex, particularly in white-collar criminal investigations. Almost any immunity or plea arrangement begins with a proffer agreement.

Proffer agreements, alternately termed debriefings or “queen for a day” agreements, have traditionally been used in three scenarios:

• One, to protect a client in an interview where the client is likely a witness, but may have some exposure if later developed facts come to play.
• Second, to debrief a client pursuant to, or in contemplation of, an immunity agreement.
• Third, to debrief a client who wants to work out a cooperating plea agreement and can provide law enforcement with valuable information about criminal activities, without the client’s words being used directly against her.

However, great care must be used in deciding to proffer a client as the protections are quite limited.

In recent years, proffer agreements have removed many of the protections once afforded. Most proffer agreements are generally only beneficial to someone who has some degree of criminal exposure; in other words, someone potentially at risk of being charged with a crime. With some types of crimes, the line between “potential defendant” and “witness” is fairly clear, but in many cases with white-collar crimes, it’s difficult to have a complete picture early in a case. Many valuable witnesses in white-collar crime investigations could have been charged with conspiracy or “aiding and abetting” or worse, if they had not obtained proffer agreements and subsequent immunity or other deals.

The terms of a proffer agreement will be outlined in a proffer letter. You and your attorney should go over this letter carefully to ensure that you understand exactly what it does and does not promise, and what it allows the government to do with the information your provide. Proffer agreements generally offer only one protection – they prevent your statements at the debriefing from being used directly as evidence against you at any subsequent trial. However, if you testify in court in a way that contradicts your proffer testimony, the prosecution can (and most likely will) use your proffered statements to challenge your testimony, and you may later be charged with perjury or obstruction of justice. Most alarmingly, if you ever decided to go to trial, your lawyer could not put on witnesses, evidence or make arguments that contradict what you said in the proffer without opening the door to your statements during the proffer coming in to impeach and discredit that evidence. Also, the information you provide as part of a proffer agreement can be used to generate leads for further investigation, which may turn up new evidence against you in the current or a subsequent criminal proceeding.

Unlike depositions and court testimony, there is no stenographer present to record statements given under a proffer agreement. The only written account of your “statement” is the report generated by the agent taking notes during the proffer. Thus, it is critical for your lawyer to take his own detailed notes of what you said as there may be disputes in the future as to what was actually said during the proffer.

If the proffer is being used to negotiate an immunity agreement, your lawyer may be able to do an “attorney proffer” where he relates the information to the prosecutor first to make sure your testimony will be of use and be immunized. This gives the prosecution an opportunity to evaluate the information you provide in terms of usefulness and trustworthiness before agreeing to a deal, and provides you with the opportunity to explain your role in events with some limited assurance that your words won’t be used against you.

Is a proffer agreement worth the risk? As with so many things in life, the answer is “maybe.” You should discuss the matter with your attorney, considering factors like the terms of the agreement (and whether they are negotiable), the strength of any potential case against you and/or your defense against the potential charges, whether you are willing to be completely candid and truthful, and the potential consequences of conviction vs. accepting the offer. Remember that government agencies can share information, so there could be collateral consequences (such as loss of professional license) to proffering.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at rstahl@stahlesq.com.