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 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 firstname.lastname@example.org