A Primer On Whether To Proffer In A Federal Criminal Case

New Jersey Criminal Lawyers Schwartz Posnock

A Federal Criminal Law Article

By NJ Criminal Lawyer, David A. Schwartz

Whether you attend a proffer session in a federal criminal case is a decision which should be made by you and your criminal defense attorney after careful consideration of the potential risks and rewards of giving a proffer.

There are several factors to consider in making this decision. The decision whether to proffer is usually complicated because it must be made at a very early stage in the investigation. More often, defense counsel and their clients have very little information involving the offense at their disposal when this decision must be made. Accordingly, the most important aspect of the decision making process is a thorough investigation and interview of the client to fully understand every possible aspect of their involvement in the case, to understand all of the potential witnesses that may give evidence against them, and to understand all the universe of documents or physical evidence that may exist and which may impact the clients. If the attorney hasn’t properly vetted his or her clients and understood as much as possible regarding their potential risk in the case, it is difficult to make an informed decision as to whether to proffer. More complicating is the fact that this decision needs to be made early, as there may be other potential defendants in the case who will want to proffer first. By proffering early, a defendant may benefit from any potential cooperation with the U.S. Attorney by avoiding criminal prosecution or gaining favorable consideration at sentencing under the Sentencing Guidelines.

Among the factors to consider in whether to proffer is the likelihood of being charged with an offense. You need to come to some preliminary conclusion as to whether the government has sufficient evidence to charge and convict you of a federal offense. Is there a valid defense to a charge? If so, the existence of a potential defense is something that needs to be known and fully understood before a decision as to whether to proffer can be intelligently made.

Just as important, you need to know that if you begin a proffer session, you must be willing to share the entire truth of the matter with the prosecutors once the proffer session begins. It is true that a proffer session can be ended at any time by simply politely terminating the session and leaving the conference room. However, it should be understood that as a practical matter if the proffer session is unexpectedly ended, the prosecutor’s suspicion index against you will go through the roof and you will be under even more intense scrutiny for the purposes of bringing federal criminal charges against you. I often advise clients that proffering is like jumping off a bridge without a bungee cord. Although you can stop any time, if you pull back, its typically a red flag that almost surely will end up getting you charged. You must also understand that making a proffer has inherent risks if falsehoods are told to or in the presence of government investigators. This has the potential of having you charged with a separate crime of making false statements. Given these factors, you need to understand what you can reasonably hope to achieve by proffering and ultimately by cooperating with the government. Of course, if by proffering you convince the government that you either have not committed an offense or that the proof is insufficient to convict you, a proffer session may have been the wisest choice to be made in the case. On the other hand, the risks of proffering are real. A proffer agreement provides very little protection for you. This is a matter that needs to be thoroughly understood before the decision to proffer is made. For your interest, we have attached a sample proffer agreement utilized by the United States Department of Justice, Office of the United States Attorney for the District of New Jersey in our article section of our website. It is a word-for-word reproduction of a proffer agreement with our client’s name and the name of the U.S. Attorney omitted for privacy reasons. We would be happy to discuss the proffer letter with you and all the risks and rewards of participating in a proffer session should you unfortunately find yourself under federal criminal investigation.

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