What is a Proffer Agreement?

Thanks to television and movies, most people are aware that prosecutors often make deals or agreements with individuals under investigation, wherein the person being investigated is granted immunity from prosecution or a reduction of charges in exchange for providing information to the government. Of course, the details of these negotiations are dramatized for the sake of the narrative; the reality of the situation is far more complex, particularly in white-collar criminal investigations. Almost any immunity or plea arrangement begins with a proffer agreement.

Proffer agreements, alternately termed debriefings or “queen for a day” agreements, have traditionally been used in three scenarios:

• One, to protect a client in an interview where the client is likely a witness, but may have some exposure if later developed facts come to play.
• Second, to debrief a client pursuant to, or in contemplation of, an immunity agreement.
• Third, to debrief a client who wants to work out a cooperating plea agreement and can provide law enforcement with valuable information about criminal activities, without the client’s words being used directly against her.

However, great care must be used in deciding to proffer a client as the protections are quite limited.

In recent years, proffer agreements have removed many of the protections once afforded. Most proffer agreements are generally only beneficial to someone who has some degree of criminal exposure; in other words, someone potentially at risk of being charged with a crime. With some types of crimes, the line between “potential defendant” and “witness” is fairly clear, but in many cases with white-collar crimes, it’s difficult to have a complete picture early in a case. Many valuable witnesses in white-collar crime investigations could have been charged with conspiracy or “aiding and abetting” or worse, if they had not obtained proffer agreements and subsequent immunity or other deals.

The terms of a proffer agreement will be outlined in a proffer letter. You and your attorney should go over this letter carefully to ensure that you understand exactly what it does and does not promise, and what it allows the government to do with the information your provide. Proffer agreements generally offer only one protection – they prevent your statements at the debriefing from being used directly as evidence against you at any subsequent trial. However, if you testify in court in a way that contradicts your proffer testimony, the prosecution can (and most likely will) use your proffered statements to challenge your testimony, and you may later be charged with perjury or obstruction of justice. Most alarmingly, if you ever decided to go to trial, your lawyer could not put on witnesses, evidence or make arguments that contradict what you said in the proffer without opening the door to your statements during the proffer coming in to impeach and discredit that evidence. Also, the information you provide as part of a proffer agreement can be used to generate leads for further investigation, which may turn up new evidence against you in the current or a subsequent criminal proceeding.

Unlike depositions and court testimony, there is no stenographer present to record statements given under a proffer agreement. The only written account of your “statement” is the report generated by the agent taking notes during the proffer. Thus, it is critical for your lawyer to take his own detailed notes of what you said as there may be disputes in the future as to what was actually said during the proffer.

If the proffer is being used to negotiate an immunity agreement, your lawyer may be able to do an “attorney proffer” where he relates the information to the prosecutor first to make sure your testimony will be of use and be immunized. This gives the prosecution an opportunity to evaluate the information you provide in terms of usefulness and trustworthiness before agreeing to a deal, and provides you with the opportunity to explain your role in events with some limited assurance that your words won’t be used against you.

Is a proffer agreement worth the risk? As with so many things in life, the answer is “maybe.” You should discuss the matter with your attorney, considering factors like the terms of the agreement (and whether they are negotiable), the strength of any potential case against you and/or your defense against the potential charges, whether you are willing to be completely candid and truthful, and the potential consequences of conviction vs. accepting the offer. Remember that government agencies can share information, so there could be collateral consequences (such as loss of professional license) to proffering.

Stahl Gasiorowski Criminal Defense Lawyers aggressively defend individuals charged with complex federal and state crimes. Founder Robert G. Stahl is recognized as one of the top criminal defense attorneys in the NY/NJ area for his skills, knowledge and success. To contact us to discuss your case, call 908.301.9001 for our NJ office and 212.755.3300 for our NYC office, or email us at rstahl@stahlesq.com.