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What is a proffer session and what should you do? January 3, 2010

Posted by jefhenninger in Articles.
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This article will explain what a proffer is, who should proffer and how a proffer works.

A proffer session, sometimes called a “Queen for a day” is an exchange of information between you, the suspect and law enforcement. You can generally admit to criminal activity and any admissions cannot be directly used against you later at trial. Proffer sessions are frequently used by law enforcement on the federal level such as the U.S. Attorney’s Office, although some state law enforcement agencies use proffer sessions as well. Furthermore, these sessions are usually used for white collar crime investigations and rarely used for “street crimes”.

The people at the proffer session will be you, your attorney one or more Assistant US Attorneys as well as members for law enforcement agencies involved in your case such as FBI, ATF, IRS Criminal Division, etc. The meeting takes place in a conference room, not a court room and it is rather informal. More importantly, there is no court reporter or audio recording so you are left with no one, unless your attorney will become a witness, to support your version of events. However, federal law enforcement usually has the highest professionalism and integrity so you rarely have to worry about someone “coloring” your statement.

There is no set format for a proffer session but you are there to give information, not get information. While the other side may give you a flavor of their case, it should be nothing more than what you attorney has already uncovered through prior discussions. Thus, preparation of the case and the client by an experienced white collar crime attorney is very important.

The outcome of the proffer session depends largely on your status. First off, if you are just a witness, you are not really there for a proffer session as you are not under any suspicion. For a proffer session, you are either a subject or a target. A subject means that the law enforcement agency is on the fence with regard to your status. It could go either way. Thus, the information given at the proffer session could turn you into a witness or a target.

If you are a target, then they think you are guilty. You just haven’t been arrested as a courtesy to you so that you will make a confession or they still need more evidence to make a solid case for trial. Rarely can you change their mind absent a polygraph test or some other evidence. Since polygraph tests are not admissible in court, there are only a handful of people around that can administer them. Thus, don’t expect to be offered one unless your attorney does a lot of convincing.

A plea offer may be provided to you at the end of the proffer session or soon there after. Another option is an immunity agreement which assures that you will not be prosecuted. In either scenario, you will likely have to agree to testify against others. If no agreement is reached, you will likely be free to leave. While nothing you said can be used against you to support the Government’s case, they can still use the information you gave them to further their investigation. Furthermore, if you are found to have deliberately lied to them, you can be charged in that regard, i.e. Martha Stewart.

While the decision to proffer, like all major decisions in a case, is up to you, it should not be made without the assistance of a skilled white collar crime attorney. There must be a purpose behind it. Just showing up to see what happens is a huge mistake that can lead to disaster. The attorney should discuss all pro’s and con’s as well as alternative options.

There are any number of reasons to proffer and not to proffer. If you have been contacted by any law enforcement agency or any other agency that requests you to make a proffer, give a statement or turn over any document, call an attorney right away. If you have an attorney that does not have experience in this area, it probably makes sense to replace that attorney or, at the very least, hire another attorney as a consultant. If you think you need an attorney for a white collar crime issue in New Jersey, New York or the surrounding areas, call me today. If you need me to come on as a consultant anywhere in the country, call me to discuss.

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