A proffer agreement is a written contract between a federal prosecutor and a criminal defendant or someone who is under criminal investigation, in which the person accused agrees to provide the government with helpful information. The benefit to the accused is that the statements made will not be used against him or her in later criminal proceedings. Rule 410 of the Federal Rules of Evidence states that “a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea” is “not admissible against the defendant who made the plea or participated in the plea discussions.”

Almost all proffer agreements allow the government to introduce statements made during plea negotiations when a defendant’s testimony is inconsistent with those statements, or when the defense makes arguments or presents evidence that contradicts those statements. Here, the statements are therefore used to impeach the defendant.

Risks and Benefits of a Proffer Agreement

Usually, a proffer is made with the understanding that the government will either grant the defendant immunity or offer a plea bargain. Often times, the prosecutor will not offer immunity or a plea bargain without a proffer in place. Disagreements may also arise later as to the specifics of the immunity or plea bargain offered. Therefore, it is important for the defendant’s attorney and the prosecutor to come to an agreement surrounding what the defendant is likely to proffer as well as what the anticipated plea agreement will be.  

One risk of a proffer is that if any part of the accused’s defense is found to be inconsistent with the proffer, the entire proffer will be introduced at trial. Next, an attorney may be forced to limit his or her defense to avoid the proffer coming into evidence. Lastly, entering into a proffer waives certain valuable rights of the defendant, mainly his or her Fifth Amendment right not to incriminate oneself.  

If a Proffer Agreement Exists, What Can a Defendant Argue at Trial?

A recent case, United States v. Rosemond, helped distinguish between challenging the sufficiency of the Government’s evidence against the accused and asserting facts inconsistent with the proffer. Defense assertions that do not trigger the waiver provision in a proffer agreement include:

• Entering a plea of not guilty
• Arguing that the government has not met its burden of proof
• Arguing that the Government failed to meet certain elements of a crime, such as intent, knowledge, or identity
• Suggesting that a witness was mistaken, lying, or did not remember or report an event accurately
• Cross examining a police officer about discrepancies between his or her testimony and their earlier written report
• Arguing that the Government failed to present corroborating evidence

If you have been accused or a federal crime or are under investigation, please contact the attorneys at Shein & Brandenburg. Our dedicated team will review your case to determine if a proffer agreement is appropriate for you.