What Happens If My Proffer Doesn't Satisfy the Government??

If the government deems the session unsuccessful, you’ll usually forfeit any cooperation credit or plea concessions you might have otherwise received. A written proffer agreement controls the ways prosecutors may use information you disclose during a recorded proffer session, including both advantages and disadvantages, and a proffer agreement provides immunity only if that’s what the agreement’s terms expressly provide for.

The 1940 Statement outlines the standards under which a tenured appointment may be terminated, and

Can prosecutors use what I said in a failed proffer against me?

The answer to this question is complex, as it depends on what you said, when you said it, how much you said, and the circumstances under which you said it. There are several factors and relevant legal principles involved, and understanding their implications is key. Here are the primary factors involved:

• Statements Made in Response to Garrity Warnings: In Garrity v. New Jersey (1967), the Supreme Court held that prosecutors cannot use statements in a criminal trial that were compelled under the threat of penalty or job loss, as it would be coercive. In other words, if you were forced to speak to avoid consequences like losing your tenure or job, these disclosures are generally inadmissible in criminal courts.

• Statements Made in Response to Campus-Hearing/Employment-Based Questions: The answer to this question also depends on the context of the inquiry. For example, in campus hearings, students and employees may be required to respond to specific questions as a condition of their continued education or employment. However, the U.S. Supreme Court also holds that prosecutors cannot use a defendant’s silence to imply guilt, a principle established in Griffin v. California (1965). Despite this, Griffin’s holding does not apply in administrative proceedings; instead, Baxter v. Palmigiano (1976) allows adverse inferences from silence in such settings.

• The Content of the Statement: What you say matters just as much as how you say it. For instance, in certain scenarios, an apology made in a campus hearing has been used as evidence of wrongdoing in a criminal trial. Additionally, Federal Rule of Evidence 801(d)(2) classifies a party’s own statements as non-hearsay, allowing prosecutors to use them in court if they can prove the statements were made.

• Earlier Statements: The timing of your statements also matters. If you made prior disclosures to university officials, prosecutors may seek to use them in court regardless of any subsequent agreements you reach. Notably, a proffer agreement generally does not protect statements made during a campus hearing if it is entered into after the hearing has taken place.

• Disclosures Made on University-Owned Computers: Disclosures made on a university-owned computer, smartphone, or laptop can also be used as evidence in criminal trials. United States v. Angevine, 281 F.3d 1130 (10th Cir. 2002) found that university ownership of devices removes any reasonable expectation of privacy, making any information found on those devices accessible to prosecutors.

• Disclosures Made Pursuant to a FERPA Request: Students have certain protections under the Family Educational Rights and Privacy Act (FERPA) when requesting to inspect their education records. While FERPA requires universities to provide access within 45 days, it is important to seek legal advice on how to use these records strategically without jeopardizing their status as privileged information.

Do I have a right to a lawyer during a proffer session?

The answer to this question is not “yes” or “no,” but “it depends.” Here are seven scenarios in which individuals have and do not have a right to counsel:

• In Rothgery v. Gillespie County (2008), the Supreme Court found that the defendant’s Sixth Amendment right to counsel “attaches” at his first judicial appearance. If you are under investigation and have not yet been brought to a judicial proceeding, then you do not have this right at this time.

• If you are subpoenaed to testify as a grand jury witness, you may bring an attorney to the building; however, you cannot bring him or her into the grand jury room. You will be permitted to speak with your attorney during recesses and at other times when you are allowed to step out of the grand jury room.

• The Sixth Amendment guarantee of counsel is not a broad right to appointed counsel. In Gideon v. Wainwright (1963), the Supreme Court clarified that the Sixth Amendment guarantees appointed counsel only when a criminal prosecution is warranted. If you are facing disciplinary or other non-criminal charges, you need to hire counsel on your own.

• When people refer to the Sixth Amendment right to appointed counsel, the right for indigents is what they are typically referring to. When you ask the court to appoint counsel on your behalf, the court will determine whether you qualify as an indigent defendant based on the court’s income thresholds. A simple declaration that you are poor is not sufficient. Additionally, keep in mind that the Sixth Amendment requires appointed counsel, but it does not require the appointed counsel to be free.

• According to 8 U.S.C. 1362(b), immigration respondents “are entitled to ‘have counsel or other representation of their own choice, but without expense to the government.’ ” In other words, immigration respondents are not entitled to government-appointed counsel.

• The Sixth Amendment does not apply to university disciplinary hearings. If you are facing charges on your campus, you can still hire an attorney on your own. However, universities can limit how much input students’ attorneys provide during the proceedings, and the courts allow this.

• University disciplinary procedures are subject to students’ due process rights. In Goss v. Lopez (1975), the Supreme Court held that students’ due process rights require them to be given “oral or written notice of the charges against them,” “ a reasonable explanation of the evidence,” and the “opportunity to tell his or her story.” While this means that universities may be restricted in their ability to suddenly suspend students, it also means that universities have broad discretion to handle disciplinary proceedings as they see fit.

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.

When will the court not appoint a free attorney for me?

The Supreme Court has issued several rulings in the area of the right to appointed counsel. While there is significant precedent in this area, there are still several open questions that will need to be addressed over time. However, there are seven scenarios in which the Supreme Court has found that a defendant does not have a constitutional right to counsel:

• The Supreme Court has held that defendants do not have a constitutional right to counsel in cases where no actual imprisonment is imposed. In Scott v. Illinois (1979), the Court agreed with the Illinois Supreme Court and affirmed its judgment, holding that an indigent defendant convicted of shoplifting and fined $50 had no right to appointed counsel because no term of imprisonment was actually imposed. The Court held that the Sixth Amendment was violated only when, “as a matter of practical effect, the defendant was actually deprived of his liberty.”

• In Argersinger v. Hamlin (1972), the Supreme Court expanded the scope of appointed counsel to include misdemeanors carrying the possibility of actual jail time. The Court noted, “In criminal cases the Sixth Amendment’s right to be represented by counsel is fundamental… and this fundamental right must apply not only to cases in which life is at stake, but also to misdemeanors with potential actual confinement.”

• In Alabama v. Shelton (2002), the Supreme Court found that the Sixth Amendment requires counsel when a defendant is sentenced to a suspended sentence with the possibility of being later revoked. With the option for an imposed suspension sentence, the Supreme Court held that the Sixth Amendment applies, regardless of whether the sentence is deferred to a later date.

Even though these are important rulings, the question is not entirely settled. Scott v. Illinois (1979) remains binding Supreme Court precedent, so courts deny appointed counsel when the sentence imposed includes no jail time, subject to the limit set by Alabama v. Shelton.

• In Ross v. Moffitt (1974), the Supreme Court held that while defendants are entitled to appointed counsel during their first appeal, they are not entitled to appointed counsel for subsequent discretionary appeals to a state high court. The Court noted that once a defendant makes their first appeal, they have fulfilled their constitutional rights.

• In Pennsylvania v. Finley (1987), the Supreme Court held that defendants in state postconviction proceedings are not entitled to appointed counsel. The Court stated that these proceedings are not “additional” appeals, but “ collaterals” and are subject to different procedural requirements.

• In Lassiter v. Department of Social Services (1981), the Supreme Court held that due process does not automatically require appointed counsel for an indigent parent in a parental rights termination proceeding, and left that decision to the trial court on a case-by-case basis.

• In Turner v. Rogers (2011), the Supreme Court held that appointed counsel is not automatically required for an indigent parent facing incarceration in a civil contempt proceeding for nonpayment of child support, so long as the court provides alternative procedural safeguards.

What are the four types of prosecutorial misconduct?

The four standard categories of prosecutorial misconduct are:

• Suppression of Evidence. In Brady v. Maryland (1963), the Supreme Court of the United States held that prosecutors’ failure to disclose evidence favorable to the defense amounts to a violation of a defendant’s due process rights under the Fourteenth Amendment. This applies to all evidence favorable to the defense, regardless of whether that evidence is exculpatory or impeaching in nature. This includes evidence in the prosecution team’s possession, and this team is defined broadly as including both prosecutors and police, such as the state attorney general, the state’s attorney, the police, the probation officer, the probation board, and any other official involved in the investigation. The Brady Rule is a fundamental aspect of criminal procedure, and it requires that all relevant, favorable evidence be disclosed. Giglio v. United States (1972) extends prosecutors’ disclosure obligations to evidence that can be used to impeach witnesses, including cooperation agreements and other statements that may relate to the witness’s credibility.

• Encouraging False Testimony. In Napue v. Illinois (1959), the Supreme Court of the United States held that prosecutors cannot “knowingly use false or perjured testimony” against a defendant. Prosecutors have a duty to correct false testimony and to disclose to the judge and defense counsel any information that is material to the case.

• Improper Arguments at Trial. In Berger v. United States (1935), the Supreme Court of the United States held that prosecutors are encouraged and expected to “strike hard blows” in their pursuit of a criminal conviction. However, prosecutors also have an obligation not to “strike foul blows.” In other words, prosecutorial zeal can excuse aggressive arguments, but not those that appeal to jury passions or prejudices, emotional pleas for conviction, attacks on the defendant’s character, or efforts to try to intimidate witnesses and defense counsel.

• Discriminatory Jury Selection. In Batson v. Kentucky (1986), the Supreme Court of the United States held that prosecutors cannot use peremptory strikes based solely on a juror’s race. Peremptory strikes are allowed, but they cannot be motivated by racial bias.

• Obscenity in College Lectures. Bonnell v. Lorenzo, 241 F.3d 800 (6th Cir. 2001) held that a college instructor was suspended with cause for using “the most obscene language imaginable in a public classroom setting.” The court held that, “While he acknowledges he is protected by the First Amendment, he should know that obsc

What can I do if a prosecutor misuses my statements?

Imbler v. Pachtman (1976) The other type of immunity that prosecutors can assert is called “absolute immunity.” In Imbler v. Pachtman (1976), the Supreme Court of the United States held that prosecutors have absolute immunity from civil liability for any conduct related to their “advocacy function,” i.e., they are immune if the conduct “was connected to the role they play as prosecutors in criminal proceedings.”

• Buckley v. Fitzsimmons (1993) The other type of immunity that prosecutors can assert is called “qualified immunity.” In Buckley v. Fitzsimmons (1993), the Supreme Court found that prosecutors only have qualified immunity for other “investigative and administrative activities,” such as when they fabricate evidence during a pre-indictment police investigation, make statements to the press, or personally attest to the truth of facts in a charging document.
• Office of Professional Responsibility (OPR). Within the Justice Department, the Office of Professional Responsibility (OPR) investigates allegations of misconduct in federal prosecutions. While OPR is not an outside agency, this is still a civil matter for the prosecutors involved.
• Harmless Error Rule. Most civil claims brought against prosecutors for misconduct fail. However, they fail not because of a lack of merit, but because of the federal “harmless error rule.” The rule dictates that “appellate courts can only reverse conviction when they find a trial error was not harmless,” or, “ a trial error was not harmless when it has a reasonable probability of which will change the outcome of the trial.”
• Bagley Materiality. In United States v. Bagley, 473 U.S. 667 (1985), the Supreme Court of the United States adopted a version of this harmless error rule in cases involving the suppression of evidence. Materiality under the Bagley Rule “means that the evidence would have had a reasonable probability of changing the outcome of the trial.”
• Intentional Infliction of Emotional Distress. Another type of civil liability is for the intentional infliction of emotional distress. To prove liability, an injured person needs to show that the defendant’s conduct was “so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency tolerated in a civilized community.”
• Restatement (Second) of Torts Section 46. The Restatement (Second) of Torts section 46 describes insults, indignities, threats, and petty oppressions as insufficient by themselves. This section also defines “outrageousness” in terms that are similar to those used in the intent intentional infliction of emotional distress standard. The Restatement is the most widely cited source for these standards in U.S. civil courts.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.