Proffer Agreements with the District Attorney's Office
In certain circumstances, the Assistant District Attorney (“ADA") and/or the Defense Attorney and/or the Defendant will want to set up an informal meeting with the District Attorneys (“DA") office. This meeting is called a “proffer" or “queen for a day." The title queen for a day (http://en.wikipedia.org/wiki/Queen_for_a_Day#Film) comes from the vintage television show of the same title, which was the predecessor to modern reality television. The contestant would tell the host all of their problems, and the audience would then ring an applause meter and the contestant would then get the relief she requested. Unlike the television show, the defendant who participates in a proffer session does not always leave as happy.
The meeting generally takes place at the ADA’s office and depending on the nature of the crime there will be various additional people from the DA’s office there. There could be Detectives, senior or junior District Attorneys, computer experts, forensic accounting people, etc.
A proffer is set up when a Defendant believes that he/she would get a favorable plea deal from the ADA if he/she proffer’s information to them. This information could lead them to new arrests, drugs, weapons, search warrants, etc. Further the Defendant might be willing to cooperate with the DA’s office as a Confidential Informant (“CI".) The DA’s office will not always be open to setting up a proffer sessions. In certain cases, they feel that they have nothing to gain from you coming in. They might have an air tight case against you, or the information you can provide to them is so limited that it does them no good.
Generally before a proffer is set up, the defense attorney will have numerous discussions with the ADA regarding the scope of the meeting and what the defendant can reasonably expect to get out of cooperating. The defense might limit the meeting to information regarding crimes that the defendant is not a part of. Also, it is imperative at all times the Defendant be 100% truthful at a proffer session. If the ADA finds out that the defendant is lying, and is not credible then they will discount everything they are being told, and they will not go through on any plea bargain promises. The Defendant can very well find themselves in the unfortunate situation where they have disclosed incriminating information, and put themselves in a compromising situation at a subsequent trial.
Before any proffer goes forward, the ADA, the defendant, and the Defense Attorney will enter into a “Debriefing Agreement." This agreement will have three main points.
- Case-in-chief Prosecution – If the DA’s office brings an action against the defendant, they will not use on their case-in-chief any statements made by the defendant in the proffer meeting. However, the ADA can use any statements in an action against the defendant for perjury or false statements.
- Statements Leading to new Evidence - The ADA can use any statements in this meeting for the purpose of obtaining leads to other evidence, and if that new evidence is developed, it can be used in a new prosecution of the defendant. Further, if the Defendant decides to go to trial, and testify the ADA can use any statements made at the proffer on cross-examination, as well as to rebut any evidence offered by the Defense.
- Merger Clause – The agreement only deals with statements made at this meeting at the specified date and time. It does not apply to any statements made at any other time. No promises as to the DA’s position as to the Defendant and a plea deal are binding, unless it is in a writing singed by all parties.
Proffer sessions are risky business. As it is clear from above, the DA’s office can use the information the defendant provides to follow-up leads and conduct further investigations. If those subsequent investigations reveal new evidence against the defendant, it can be used to prosecute and convict the defendant. Further, the ADA has now had an opportunity to see how you are under pressure, under examination, and your underlying theory of the facts of the case. The debriefing agreement is specifically written broadly so that the DA’s office has great latitude in its options against you. By proffering, you basically give up your right to present a full defense at trial. Now, what do you do if you do not get the deal that you expected.
Before you decide to enter into a proffer agreement with the DA’s office a Defendant and his/her counsel must consider a few questions:
- How strong is the DA’s case against you?
- Do you have any defenses? If so, how strong are they?
- What are the possible sentences if you cooperate?
- Are there any plea bargain limitations?
- What about the possible sentences if you are convicted at trial?
- Could you weather the storm that a trial brings?
- Is the DA trustworthy? Is he/she authorized to plea out this matter as they fit? Do they need a supervisor/bureau chief’s permission?
- How much information can you provide?
- What sort of information can you provide?
- Are you or your family at risk if you provide information?
- Can you testify at trial of any of the future defendants that your information led to their arrest?
- Are you confident that you can be truthful even if it is incriminating?
- Do you have any professional licenses at stake if you are convicted?
- Is your family or loved ones at risk of arrest, indictment, etc.?
- Is there any pending civil/forfeiture action?
Once a thorough analysis of the above questions and answers is done, one can make an informed decision as to whether a proffer session is in their best interests. As in any interaction with law enforcement, one must guide themselves accordingly.
Todd A. Spodek, Esq. is a criminal defense lawyer with Spodek Law Group P.C. in New York City.