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What is a proffer agreement and why does a proffer agreement help?

By Spodek Law Group | July 19, 2023
(Last Updated On: November 28, 2023)

Last Updated on: 28th November 2023, 10:15 pm

What is a Proffer Agreement?

A proffer agreement is basically a deal between someone under investigation for a crime and prosecutors. It lets the person tell prosecutors information about the crime with some protection that what they say won’t be used against them later. The idea is to give prosecutors useful info and to let the person show they want to cooperate, in hopes of getting a better deal down the road.Proffer agreements can be tricky though. Here’s a quick rundown of how they work:

The Basics

  • A proffer agreement is a written contract between a prosecutor (usually a federal prosecutor) and someone under investigation for a crime (the defendant).
  • The agreement lets the defendant sit down with the prosecutor and investigators and tell them everything they know about the crime. This is called a “proffer session.”
  • What the defendant says in the session can’t later be used against them at trial. This gives them some protection to speak openly.
  • But (and this is a big BUT) there are exceptions where prosecutors can use the statements:
    • To cross-examine the defendant if they testify differently at trial
    • To challenge any arguments by the defense that contradict the proffer statements
    • To prosecute them for perjury or obstruction if they lied during the session

So the protection isn’t absolute immunity – there are risks.

Why Make a Proffer Agreement?

Defendants agree to proffer for a few key reasons:

  • The evidence against them is overwhelming, so cooperation is their best option.
  • They hope it convinces prosecutors to not charge them or reduce the charges.
  • They hope prosecutors will agree to a better plea deal or sentencing recommendation later.
  • It’s basically an audition to become a cooperating witness and get immunity.

So it can be worth the risk, if they cooperate fully and truthfully.

The Proffer Session

In the session, the defendant answers any and all questions from prosecutors honestly and completely. Their lawyer is present too.They have to give up info about their own role in the crime and sometimes others involved. The goal is to convince prosecutors they can provide valuable testimony later.Lying or holding back info can ruin the whole deal. Prosecutors emphasize that false statements in the session can lead to charges for obstruction of justice or making false statements.

Potential Benefits

If it goes well, the proffer session can lead to:

  • A plea deal for lesser charges
  • Reduction of charges
  • Lighter sentencing recommendation
  • Even full immunity from prosecution in exchange for testifying

But again, nothing is guaranteed. It depends on the quality of the information provided.

Risks and Downsides

Some key risks of proffering include:

  • The defendant might admit to crimes that are hard to prove otherwise.
  • If they lie or hold back, the deal is off – and now prosecutors have a statement to use against them.
  • Prosecutors might not offer immunity or a plea even after a proffer session.
  • Sentencing could be worse if prosecutors argue the defendant didn’t fully cooperate.

So it’s very important to have an experienced criminal defense lawyer when considering a proffer agreement. They can help analyze if it’s the right move and negotiate the best terms.

The Agreement Terms

While the basics are standard, some terms can be negotiated like:

  • The scope of what statements prosecutors can use later
  • Whether statements can impact sentencing recommendations
  • Precisely what benefits the defendant gets for cooperating

Again, a lawyer helps ensure the terms are favorable.

In Summary

Proffer agreements involve risk but can also provide benefits. For the right defendant, cooperating with prosecutors under a proffer agreement can drastically improve their situation.But it’s not a decision to take lightly. An experienced criminal defense lawyer is essential to protect the defendant’s rights, negotiate favorable terms, and advise if a proffer agreement is advisable or not.With proper guidance, some defendants can gain immense benefits from proffering. But improper use of these agreements can also backfire badly. So talk to a criminal defense lawyer to understand if it aligns with your specific case.

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