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What is a Proffer Agreement?
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What is a Proffer Agreement?
A proffer agreement, also known as a “queen for a day” agreement, is a legal agreement between a defendant and prosecutor that allows the defendant to provide information to the government related to an investigation without that information being used directly against them. It’s essentially an opportunity for a defendant to cooperate with law enforcement and prosecutors in exchange for possible leniency.
How a Proffer Agreement Works
Here’s a quick rundown of how a proffer agreement typically works:
- A defendant who is under investigation or facing charges agrees to be interviewed by prosecutors and provide complete and truthful information related to criminal activities they are aware of. This could include activities they were directly involved in or have knowledge about from others.
- In exchange, the prosecution agrees that nothing the defendant says during this proffer session can be used directly against them in court. This gives the defendant an opportunity to cooperate, answer questions, and provide information to authorities without incriminating themselves.
- However, there are limitations. Although the prosecution cannot use the defendant’s actual statements during the proffer session against them in court, they can follow up on and investigate leads and information provided during the session. So any evidence turned up through the defendant’s cooperation would be fair game.
- After the proffer session, it is up to the discretion of the prosecution whether to offer any kind of plea deal or leniency based on the level and value of cooperation provided. There are no guaranteed deals. But defendants pursue proffers in hopes of a reduced sentence or charges.
When is a Proffer Agreement Used?
Proffer agreements are extremely common in federal cases involving organized crime, drug trafficking, fraud, or other conspiracy cases:
- Prosecutors know these crimes often involve many players and layers of criminal activity. A proffer session gives them an opportunity to identify all the key people involved, understand the full scope of operations, and have cooperators provide information that can further investigations.
- For defendants, there is often a huge incentive to pursue a proffer and cooperation agreement, especially if they are facing serious mandatory minimum sentences. Providing substantial cooperation to prosecutors is one of the only ways they may be able to significantly reduce a sentence.
Proffer agreements also frequently occur in white collar investigations into areas like insider trading, corporate fraud, public corruption cases, etc. Defendants with information to trade will pursue sessions with prosecutors in hopes of avoiding prosecution or reducing charges.
The Benefits and Risks of Proffer Agreements
Benefits for Defendants:
- Opportunity to provide information and cooperation without additional self-incrimination
- Chance to show remorse, willingness to accept responsibility, and commitment to setting things right
- Potential for charges to be reduced or dropped if cooperation is substantial
- Possibility of a lighter sentence or reduced mandatory minimums
Risks for Defendants:
- No guaranteed benefits or leniency. The judge ultimately determines sentencing.
- Information provided can be used to investigate and build cases against others who may then also implicate the defendant
- Possibility of prosecution for perjury if found to have lied during the proffer session
- Statements made could still potentially be used for impeachment purposes if the defendant takes the case to trial and testifies contradicting their proffer statements
Benefits for Prosecutors:
- Gain information to further expand investigations without granting immunity
- Opportunity to identify major players in criminal enterprises and build stronger cases
- Cooperators can provide testimony against higher value targets
- Help resolve cases efficiently if defendants plead guilty
Risks for Prosecutors:
- Resource intensive. Cases may expand significantly based on cooperator information requiring more prosecutorial resources.
- No guarantee that cooperators tell the complete truth during sessions
- Benefits offered to cooperators can undermine severity of charges and public confidence in outcomes
- Can complicate cases if defendants lie or cooperation breaks down after initially agreeing to proffer
Proffer Agreements vs. Immunity Deals
Proffer agreements are different than full immunity deals:
- Immunity protects a defendant from prosecution entirely based on the information they provide. Nothing they disclose can ever be used against them.
- A proffer agreement is more limited. Defendants don’t have full immunity for the information they provide prosecutors during a session. That information just can’t be used directly against them at trial. But it can be used indirectly to investigate further and build cases.
So why would a defendant agree to a proffer session instead of requesting full immunity?
- Prosecutors are much more willing to engage in proffer discussions whereas full immunity is only granted very rarely in extraordinary cases.
- Defendants pursue proffers because they still provide an opportunity to cooperate and potentially earn sentencing benefits, even if immunity is off the table.
How a Defense Lawyer Can Help
Engaging in a proffer agreement and cooperation session with federal prosecutors is an extremely high stakes proposition. The risks are substantial if mishandled.An experienced federal defense lawyer is critical to protect a defendant’s rights during this process. Specifically counsel can:
- Negotiate the terms of a proffer agreement to be as beneficial as possible for a defendant
- Prepare client extensively prior to the session so they understand the process and risks
- Debrief and advise client after the proffer session
- Argue for an advantageous plea deal or leniency at sentencing based on cooperation provided
- Defend client if prosecutors attempt to use statements in violation of the agreement
The stakes are simply too high for a defendant to pursue cooperation with prosecutors without trusted legal guidance at every stage. Understanding exactly what a proffer agreement entails is important for anyone facing criminal prosecution.
Frequently Asked Questions
Can a proffer agreement be broken or revoked? Yes, it is possible for either side to pull out of a proffer agreement. Prosecutors could revoke the agreement if they determine the defendant lied or intentionally mislead them. The defendant could also have their attorney stop the session if they realize the questioning is going beyond the scope of the agreement. But once statements are made, they can’t be fully taken back.
Can what I say in a proffer session be used against others? Yes. While prosecutors cannot directly use your own words against you, they are free to follow up leads and build cases against third-parties based on the information you provide. Your cooperation may definitely implicate others.
What happens if I lie in a proffer session? You could be charged with a new offense like perjury or obstruction of justice. It also destroys your credibility as a cooperator, eliminating chances for a plea deal. No matter what, be completely transparent and truthful during proffer discussions.
Can information from my proffer help in related civil cases? Maybe. While the agreement itself protects you from criminal liability based on your statements, there likely isn’t similar civil protection. Opposing parties in related lawsuits could potentially subpoena your proffer statements or related evidence uncovered indirectly based on your cooperation.
Do I have to accept a plea deal after proffering? No, absolutely not. You retain your full trial rights. After hearing the prosecution’s best offer following cooperation, you can still reject a deal and take a case to trial if you so choose. But going to trial does risk losing any sentencing benefits promised in a plea offer.
Resources
For more information on proffer agreements in federal cases, please consult with an experienced criminal defense attorney or check these additional resources: