A proffer is technically a written agreement. It is an agreement between a Prosecutor and a Defendant, or witness, in which information about a crime is exchanged for the promise that their information and words will not be used against them in a later Court Hearing. After entering into a Proffer (the Agreement) a meeting with the Prosecutor and often the investigator is conducted. This is an exploration of what the Defendant or witness can provide the Prosecutor and investigator about their investigation. If the Prosecutor believes the statements and information truthful and helpful, then the Prosecutor often will enter into an immunity or plea agreement. This information and statements are what is protected under the Proffer and typically cannot be used at a trial or hearing against the Defendant or witness. This is why a Proffer is sometimes called “Queen/King for a Day Immunity” because it protects the Defendant or witness from having their words or information provided at the Proffer meeting from being used against them at a future hearing. Often, a formal written proffer agreement will not contain any express promises, rather your attorney and Prosecutor will have informally worked out an agreement outlining what the Defendant or witness is likely to provide and what the Prosecutor will likely exchange for that information. Rarely does a Proffer letter fully exonerate somebody from Prosecution. Therefore, it is very important to have a Defense Attorney review the Proffer so that the Defendant or Potential Witness will know exactly how it will affect their case.

Why do Proffers exist?

They occur because in white collar crimes there are often multiple actors. Generally, there is a leader or leaders running the fraud and a lower ring of people facilitating the crime. Often one person does not complete all the elements of a crime as different people work in tandem to make up all of the elements of the crime. At other times, the leader or leaders in charge are managing the lower-level players often in a manner that keeps the leaders free from committing any crimes. Therefore, investigators often catch and put together cases around these lower-level players but can have trouble connecting the dots surrounding the whole picture. For example, in Medicaid fraud cases it is common that the owner of the company will direct his employees to engage in fraudulent activity. Sometimes this activity is known to be fraudulent to the employees and sometimes they are oblivious. In this scenario the employee carrying out their employer’s orders was the one actually carrying out the crime, while the owner’s hands remain clean. Prosecutors need to establish intent and knowledge on behalf of the owner who is financially benefitting from the fraud. As a result, Prosecutors enter into these Proffers with the employees to put together a case against the owner.

Are there any risks with participating in a Proffer?

The Proffer Agreement only prevents the Prosecutor from using your own statements against you in their Case-in-Chief. It does not prevent them from using your information to conduct further investigations and gather independent evidence against you. Additionally, statements made during a proffer can be used for impeachment or to show that you are being untruthful at future Court appearances. Proffers can carry a high risk without much benefit which is why it is important to consult with an experienced attorney who not only understands these agreements but one that can help protect you throughout this process and ensure you receive the best outcome possible.

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