What Documents Should I Bring to a Proffer Session??

As we discussed in the Federal Grand Jury pages, a proffer session is a voluntary meeting. Normally, there will be a written agreement which outlines who will participate, when the session will take place, how it will be structured, and what it will cover. The government may send an invitation request to have you produce documents as well, but a voluntary proffer is not a subpoena; you do not have an obligation to produce any documents unless the prosecutors are compelling production (i.e., they sent a subpoena).

The offer for a proffer session will typically be accompanied by a written agreement which outlines what the participant can and cannot do, what their legal protections are, and what the benefits of the session are. Your lawyer should review the offer and agreement in detail, and you should not sign until your lawyer gives the ok.

The document (and any documents you bring to the session) may be subject to additional rules and obligations. The invitation letter to participate in a proffer session should also make clear what additional protections you or your attorney have in respect of your representations made during the session.

Real ID (compliant identification) is required for entry to many federal facilities, including U.S. Attorney’s Offices, as of May 7, 2025. If you plan to participate in a federal proffer, remember to take along your Real ID.

What Otherwise, I Need to Know?

Federal proffer practices vary among districts, prosecutors, and specific written agreements. Many U.S. Attorney’s Offices have policies on proffer sessions, and federal agents have guidelines on proffer sessions as well. When you sign your proffer agreement and participate in a proffer session, you will be bound by whatever the agreement says.

Does a Proffer Invitation Require Me to Produce Documents?

A grand jury subpoena duces tecum, issued to a “witness,” will generally require that witness (or their employer) produce any and all documents in their possession, regardless of whether a voluntary proffer session also occurs. While voluntary proffers may not compel production, if the U.S. Attorney’s Office has also issued you a grand jury subpoena, that subpoena must still be served.

With respect to documents produced pursuant to a subpoena (and other forms of compelled production), a key issue is whether the act of producing the documents itself constitutes testimonial communication for purposes of the Fifth Amendment. In the landmark case of Fisher v. United States, the Supreme Court of the United States held that the act of producing documents does not constitute testimonial communication under the Fifth Amendment to the United States Constitution. The Court held that when documents are produced on authority of a subpoena, the person producing the documents is testifying only to their existence.

However, in United States v. Hubbell, the Supreme Court held that the act of producing documents under a subpoena duces tecum can constitute testimonial communication when the production requires the person to identify documents relevant to a criminal investigation. In Hubbell, the person who received the subpoena had to select certain documents from files in his possession and deliver them to the grand jury. The Supreme Court held that this acted as a disclosure of knowledge in which the witness’s choice to produce certain records and not others showed that he had knowledge of the records. In Hubbell, the prosecution was barred from using any documents produced during a grand jury proceeding when the government had granted act-of-production immunity to a witness who testified in front of the grand jury.

The Fifth Amendment does not apply to records of entities, and prosecutors can compel production of corporate, partnership, and other collective records by issuing a subpoena duces tecum to a corporate custodian or representative. In Braswell v. United States, the Supreme Court held that a corporate custodian cannot invoke the Fifth Amendment when confronted with a grand jury subpoena duces tecum for corporate records. In Bellis v. United States, the Supreme Court held that the same rule applies to the records of a partnership or other collective entity, as the Fifth Amendment privilege was not intended to cover collective business entities.

Under Rule 16(a)(1)(E), the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, and tangible objects within the government’s possession, custody, or control that are material to preparing the defense. However, defense counsel’s reciprocal discovery obligations under Rule 16(b)(1)(A) is only triggered after a request for disclosures made by the government.

May Prosecutors Ask Participants to Identify, Comment, and/or Explain Documents?

In federal proffer sessions, prosecutors can and often do ask participants to identify, comment, and/or explain documents that the participants have received from the government, and/or that the participants have produced in response to a grand jury subpoena or similar demand for production. Similarly, participants often present documents that they believe are exculpatory or mitigating in nature.

Can Federal Proffer Sessions Take Place Prior to an Indictment or After Criminal Charges have Been Filed?

A federal proffer session can take place both prior to an indictment and after criminal charges have been filed against an individual. Proffers can occur at any stage of the federal criminal justice process.

Which Documents Are Too Dangerous to Hand to Prosecutors?

Any document or device that contains communications between counsel and a client may be subject to the attorney-client privilege or work-product protection. Voluntarily handing such documents or devices to the government generally waives the privilege or work-product protection, and the participant has to disclose all other documents that are protected by the privilege or work-product protection.

• Waiver of privilege and work-product protection

In federal court, Federal Rule of Evidence 502(a) defines how far disclosures to an adversary waive the attorney-client privilege and work-product protection. The rule states:

Voluntary disclosure of privileged or work-product information by the holder of the privilege or protection, who has otherwise adequately represented the client’s interests, does not waive any privilege or work-product protection only to the extent that the communication:

(A) is made in accordance with a court order or rule;

(B) is intended to be kept confidential;

(C) is made in accordance with a court-sanctioned alternative to discovery; or

(D) is made under a joint-defense agreement.

If these requirements are not met, “any disclosure of privileged or work-product information to an adversary or an adversary’s agent waives the privilege or work-product protection not only with respect to the disclosed information but also with respect to all information that is substantially similar to the disclosed information.”

Generally, federal courts reject the concept of selective waiver. This means that the government cannot agree to not use privileged and/or work-product information obtained during a federal proffer session against the participant or any other person or entity.

If you accidentally disclose work product to an adversary, you must promptly take reasonable steps to retrieve the disclosure to avoid waiving work-product protection. Federal Rule of Evidence 502(b) requires an accidental disclosure to be promptly retrieved and is deemed not to constitute a waiver.

The Fifth Amendment to the United States Constitution generally does not apply to the documents produced under a subpoena duces tecum. However, it is not necessary to produce documents that you cannot reasonably be expected to have in your possession. If the grand jury subpoena requires you to search your files and you have no reasonable recollection of receiving or possessing the documents in your files, this will be a defense to the subpoena.

Joint-defense materials generally are shared among co-defendants and other third parties who are involved in a grand jury investigation. Generally, you cannot disclose any joint-defense materials to anyone else without the consent of every joint-defense group member.

Can I Face Federal Charges for Proffering False or Fraudulent Documents?

Yes. 18 U.S.C. § 1001(a)(3) states that it is an offense for anyone, knowingly and willfully, to use “any false writing or document” in a federal investigation, proceeding, or court matter. This statute also requires the document to “materially” affect the government’s decision-making.

Should I Bring Original Documents or Copies to a Federal Proffer Session?

Federal Rule of Evidence 1002 requires an “original” (i.e., the writing itself) to prove the content of a writing. However, Federal Rule of Evidence 1003 allows a duplicate to be admitted in place of the original unless (i) a genuine question is raised about the original’s authenticity, or (ii) the circumstances make it unfair to admit the duplicate. For example, if a federal agent discovers you had a duplicate when you should have had the original, this could be seen as evidence that you were trying to hide something.

Under Federal Rule of Evidence 901(a) “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Duplicates, copies, or other types of evidence can be admitted to prove authenticity and, in many cases, can be presented as electronic evidence.

For instance, Fed. R. Evid. 902(13) and (14) provide that the following data are self-authenticating: “records generated by an electronic process or system that produces an accurate result, . .. (A) by a qualified person’s certification of the record’s authenticity” and “data copied from an electronic device, storage medium, or file, . .. (A) by a qualified person’s certification of the authenticity of the original data and (B) a written comparison of the hash value of the data extracted to the hash value of the data produced.”

Documents produced in response to a subpoena duces tecum can be considered material evidence in a federal criminal prosecution. Federal prosecutors can present such evidence to the grand jury, and the grand jury can use the evidence to indict you or any other person or entity. If you have any documents or electronic records in your possession and you are facing a grand jury subpoena, it is imperative that you contact a federal criminal defense attorney immediately.

The United States Department of Justice (DOJ) has policies regarding the production and use of documents in grand jury investigations. In most cases, you should bring only certified or verified copies of documents to federal proffer sessions. Your lawyer will provide advice based on the specific circumstances of your situation.

What are the Penalties for Altering, Concealing, or Destroying Records or Documents?

Altering, concealing, destroying, or shredding records or documents in anticipation of a federal investigation or when facing a federal grand jury subpoena can have serious legal consequences. As discussed above, these acts could constitute evidence that the participant is hiding something or is culpable. Additionally, the following federal statutes criminalize altering, concealing, destroying, or shredding documents as a part of impeding or obstructing a federal investigation:

• 18 U.S.C. § 1519: This statute prescribes fines and/or imprisonment of up to twenty years for anyone who “alter(s), destroy(s), mutilate(s), falsify(ies), conceal(s), or falsify(ies) any record, document, or tangible object with the intent to impede, obstruct, or influence an investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States.”
• 18 U.S.C. § 1512(c)(1) contains similar language, and it applies to anyone who corruptly “alter(s), destroy(s), mutilate(s), or conceal(s) a record, document, or other object with the intent to impair the object’s integrity or availability for use in an official proceeding.”
• 18 U.S.C. § 1512(c)(2) contains similar language, and it applies to anyone who corruptly “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.”

This is the point at which most people call a lawyer. Spodek Law Group takes federal criminal defense cases nationwide from its New York and Los Angeles offices.

Can I Bring My Phone or Laptop to a Federal Proffer Session?

The federal government can forensic image your phone, laptop, or other electronic device. Forensic imaging involves capturing a bit-by-bit image of the device’s storage medium. This means that it is very difficult to delete any files or otherwise hide information before the forensic imaging process. When the government performs forensic imaging on a device, this results in the acquisition of all information that is stored on the device. This includes any information and files that were deleted as well as unrelated information (i.e., a “throw everything in” approach).

Here are just three examples:

• 18 U.S.C. § 3509(m): 18 U.S.C. § 3509(m) provides: “Whenever child pornography is discovered and is to be presented in evidence, it shall remain in the custody of the court or the government until the conclusion of the trial or otherwise decided. No individual who has access to child pornography shall remove child pornography or create a copy of it for purposes unrelated to the prosecution.”
• 18 U.S.C. § 793(e), Unauthorized Retention of National Defense Information: If a device contains national defense information, then the unauthorized retention of the information constitutes a felony offense.
• Executive Order 13526, Classified National Security Information: Executive Order 13526 outlines the marking, handling, and storage of classified information, the retention of which must be limited to authorized personnel.

The Federal Protective Service is responsible for screening visitors and their property entering most federal buildings.

If you voluntarily present a device in your possession to federal agents during a proffer session, then government personnel can document the information they have on their proffer forms.

Participants in federal proffer sessions typically include:

• The participant;
• The participant’s counsel;
• The prosecutor;
• Investigating agents.

The proffer session normally takes place at the offices of the U.S. Attorney’s Office. However, it could take place at any other location such as an office or a hotel. Depending on the circumstances involved, a federal proffer session could take place anywhere. The location of the session may vary depending on the participants involved and where it is deemed most appropriate for the session to take place.

How Does the Government Record What I Say at a Federal Proffer Session?

The FBI uses Form FD-302 to memorialize a witness’s or participant’s statements and responses during interviews or during a proffer session. A Form FD-302 is a summary rather than a verbatim transcript. The Department of Justice’s (DOJ) FBI and CIA manuals state that Form FD-302 “summarizes the substance of the interview; and” and “will be used to support the government’s presentation of the witness’s statements in the witness’s own words as they are most likely to have been stated.”

DEA agents document investigative interviews using a Form DEA-6. Form DEA-6 contains a summary of the information, documents, records, or testimony the investigator obtained from a target or witness. Form DEA-6 summarizes the interviewee’s statements and is not a verbatim record of the interview.

The DOJ’s 2014 Justice Manual (which superseded the 2013 U.S. Attorneys’ Manual) requires federal prosecutors to, when practicable, “record, and save a copy of the audio recording, in any post-arrest custodial interrogation or interview.” A proffer session usually is not a post-arrest custodial interrogation or interview. No federal rule or U.S. Attorney’s Office policy requires a proffer session to be recorded, and no federal rule or U.S. Attorney’s Office policy fixes a proffer session’s length.

Investigators can compare the participant’s answers in the federal proffer session with information contained in bank or insurance records and previously gathered evidence. This helps them to uncover any lies, inconsistencies, or omissions the participant may have made in the session. Additionally, names, financial accounts, locations, and records provided by a participant during a proffer session can lead to further inquiries and may also result in the opening of a new investigation.

However, it is important for the participant to disclose accurate and complete information during the proffer session. Providing false or misleading information to a federal prosecutor or agent can constitute a federal crime. 18 U.S.C. § 1001(a)(1) and (3) provides that it is an offense to knowingly and willfully, “[f]alsely or fraudulently … make or use, in any matter within the jurisdiction of the executive, legislative or judicial branch of the Government of the United States, any material false, fictitious or fraudulent statement or representation, or in any such matter, any false, fictitious or fraudulent document.”

Does the Proffer Agreement Protect the Documents I Hand Over?

A federal proffer agreement only governs statements made by the participant during the proffer session. It does not immunize physical evidence, or other items presented by the participant to federal agents. For example, documents, drugs, electronics, or other contraband presented by a participant are not subject to the proffer agreement, and the federal government can present such materials as evidence in its case-in-chief.

A typical federal proffer agreement permits the use of any information disclosed by the participant on a derivative or collateral basis to obtain other evidence to use against the participant at trial. However, such agreements typically prohibit direct use of the participant’s proffer statements in the government’s case-in-chief.

However, there are exceptions to the government’s permission to use proffer information on a derivative or collateral basis. Under 18 U.S.C. § 6002, the government is barred from using immunized testimony “to prosecute, in any court, the individual or any other person to whom the information or evidence relates,” and from using “the information or evidence obtained so as to have this section applicable to prove or support any information or evidence that would not have been admissible in a criminal proceeding had the immunized testimony not been compelled.” 18 U.S.C. § 6002 covers both compelled and voluntary testimony in grand jury proceedings, but it is broader than the protections included in typical proffer agreements.

If a participant breaches a proffer agreement, the government may be entitled to enforce the agreement’s provisions that restrict the use and disclosure of information by the participant, as well as the government’s right to present the participant’s statements to prove the participant’s culpability or to impeach the participant’s testimony at trial. As a general rule, the remedies available to the government for a breach of a proffer agreement are those stipulated in the agreement. Federal courts generally construe a proffer agreement as a contract, and they strictly enforce the terms of a proffer agreement under federal contract law. If the agreement identifies the specific consequences of a breach, this will generally be the only remedy available to the government.

A federal proffer agreement is not a plea bargain, and it does not entitle the participant to immunity. A proffer session is a stage in the investigative or pre-trial process that gives the participant an opportunity to protect their interests while working with the government to potentially mitigate their culpability.

Get Advice on Your Situation

If you want someone to look at the specifics of your case, Spodek Law Group handles federal criminal defense nationwide from New York and Los Angeles. The firm has been practicing since 1976 and its motto is simple: we owe loyalty to only you. Call 212-300-5196.