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How to Prepare for a Proffer

April 21, 2020

Not many things in life are as daunting as being the subject of a criminal investigation. At some stage, you and your lawyer may come to the decision that the optimal course of action is for you to arrange for a discussion with the prosecutor in which you divulge to him or her everything you know about the crime in question in preparation for a plea bargain or for charges against you to be dropped. Such a meeting with the prosecutor is known as a “proffer.” The main goal of this article is to advise you in best practices to prepare for a proffer from the perspective of a person who has walked in your shoes before.

Number One: Trust Your Attorney.

He or she is there to protect you. Nonetheless, your lawyer is neither the prosecutor nor the judge, so while it may be embarrassing to reveal certain details about your involvement in the case being investigated and the other persons who are also subjects of the investigation and their relationship to you. There is no need to feel embarrassed; your lawyer has most likely heard similar stories to yours before. Where there is any uncertainty as to whether or not a specific detail is relevant or important, let your attorney know and allow him or her to help you decide whether it should be included in the proffer or not. A search of all documents you have that could be relevant in the matter or to any other people involved would also be required, including all of your relevant emails and text messages. Again, hand all of this over to your lawyer and let them use their professional judgment to decide what is or isn’t relevant. If you decide not to be one hundred percent honest with your attorney, then your attorney will have a hard time helping you arrive at the best outcome for your case. Additionally, if you are dishonest with the prosecutor during the proffer meeting, you risk being charged with the federal crime of lying to a government investigator. Indeed, the last thing you want to do is commit a crime on top of the one with which you are already being charged.

Display Humility and Sincerity Throughout the Investigation.

Accept that you have made errors in judgment, even if you don’t believe that you have truly committed a crime, that whatever crime you did commit was “minimal,” or that the prosecutor has been unfair to you. Your humility will benefit you in the currency of effective communicating with and assisting your attorney. Humility will additionally assist you in making an effective proffer, because the prosecutor will be convinced if he or she sees that you are fully accepting responsibility for your mistakes and not attempting to minimize your role in any criminal activity.

During such a time, you need the emotional support of someone other than your attorney.

Your lawyer is your professional representative, not a friend or loved one. Their job is to advise you of your options and explain to you the realities of your case, not to help you to feel better. Nevertheless, it is rather important to your emotional health to keep someone close who you can trust and rely upon. If you are married, your spouse is a good candidate for this role because everything you tell him or her is privileged. In other words, the government would not be able to force him or her to reveal what you said to them in marital privacy. If you confide in a person who is not married to you, such conversations will not be privileged, so it’s best that you refrain from sharing any of the details of your case. Speaking in general terms such as sharing what you are being charged with and what sentence you might be facing, as well as your feelings and worries about the situation is completely acceptable and may help you to cope. Enlisting a close friend or family member that you can lean on could be helpful in managing your stress during this time. If you are a person of faith, you could also call upon people to pray for you without revealing any details of your case other than that you are facing a difficult time. Definitely refrain from posting updates, statuses or stories about your case on any social media platforms. Maintain a small circle of trusted individuals.

Engage in unrelated activities to keep your mind off your case.

Criminal cases often grind slowly through the justice system.  Therefore, it can be very helpful for you to find activities to take your mind off all the upcoming meetings and the unknown future. Become engaged in social activities, watch enjoyable films, learn about used machinery and production lines, read books, finding a new wine shop hobby take up a new hobby such as painting or meditation, or try some other new activities you might enjoy. It will also do you well to take care of your physical health during this period. Although it may be hard not to turn to alcohol or comfort foods during such a stressful time, eating healthy food, exercising, and getting enough sleep will help keep you in the best mental and physical state for when it is time for the proffer meeting with the prosecutor.

Voice your opinions while respecting your lawyer’s expertise.

Although your lawyer is indeed the expert, you are a member of the team whose aim is to lock down the best results for you at the end of the day. Make your opinions known while at same time respecting your lawyer’s expertise. Bear in mind that you are the one who lived the facts and are the primary source of information on the events as they unfolded. Do not hesitate to correct any misperceptions your attorney may have about who did what or the timing in which a certain event occurred. Additionally, be aware that part of your attorney’s undertaking is to share with you his or her honest assessment of your case and how it will likely be perceived by the government. Becoming angry with your lawyer or blaming him or her for the government’s actions will not help you achieve your goals.

Think carefully about the question asked before giving your answer.

On the day of the proffer meeting, the investigators and prosecutors present will explain to you their specific concerns and inquiries regarding your matter. With any luck, your attorney will have learned these concerns in advance of the meeting and prepared you to respond to the questions completely and honestly while not giving up any additional facts beyond those that are requested. Your Attorney will be positioned next to you during the proffer to hear the questions and answers. He may request a break at some point to confer with you privately or if he feels that you are beginning to grow weary or lose focus. You also have the right to request a break at any point to use the restroom or get something to drink, although the prosecutor may ask you to answer any pending question before you get the break. Do expect the prosecutors and agents to be professional and perhaps even amicable, but never forget that they are not on your side and be cautious when considering each question that is asked before composing your truthful answer and speaking in response.

While you are on a break, you can take the opportunity to ask your attorney any questions that are on your mind. He or she may also use this time to coach you to respond to the questions audibly, to speak slowly, and to suggest potential clarification if it seems that one or more of your replies may have been misunderstood.

In case you do not understand a question the prosecutor poses, it is totally acceptable to indicate this and to request that the question be rephrased. Additionally, you may not have the answers to all of the questions, and at times you may not remember specific details. In such cases, “I don’t know” or “I don’t remember” are acceptable as your full, complete, and truthful answer.  You should not hesitate to give such answers where appropriate.

Even though the government has your attorney’s written proffer, if there was one, your actual proffer is what you say at the meeting. To that end, they will start from the very beginning and ask you the same questions to which your lawyer has already furnished them written answers; it is important that they hear those answers on the record directly from your mouth. They will compare your verbal answers with the written proffer submitted by your Attorney, so be certain that you review the attorney’s proffer before entering the session.

Be ready to give answers to additional questions.

You should also expect to be asked more questions than what was asked and answered in the written proffer. Your responses to these questions can be critical, and your attorney will attempt to predict what additional questions the prosecutor might ask before the session to help you to prepare. For example, “Why did you not suspect that your behavior was illegal?”, “ Didn’t you think it strange that you were being offered so much money?” , “ Given what you knew about Mr. X, why didn’t you suspect that he was not telling you the truth?” Answer each question just as it is asked. If you are unclear what the prosecutor is asking you, seek clarification; for example, “Do you mean only the money I received from Mr. X relating to this transaction, or do you mean all the money I received from Mr. X?”

Do your best not to be argumentative or defensive in response to the prosecutor’s questions; your Attorney will forcefully advocate on your behalf both ahead of and in the timeframe after the proffer. Regardless, it is fitting and indeed crucial for you to correct any factual inaccuracies in the Government’s questions or statements.  That said, be careful to do this in a respectful, calm, matter-of-fact tone. For example, “I honestly did not know, at the time, that Mr. X had been convicted of XYZ.”

Allot plenty of time for your proffer session.

Be ready to allot more than enough time for this proffer meeting. If possible, you should clear the entire day. It could take longer than expected, and if you are concerned about child care or making it to another appointment, it may come across in your testimony as nervousness or even dishonesty. Also, prosecutors are not obligated to offer you this opportunity to proffer and are unlikely to be impressed if you attempt to end the session early.

In the event that you become the target of or a defendant in a federal investigation and you are considering cooperating with the government, it is best that you enlist an experienced defense counsel that understands the proffer process and who can effectively advise you as to whether you are a valid candidate to enter an agreement with the government.

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