Imagine you are testifying as a witness for a case, but you are hesitant about telling the court that you may have been aware of the crime before it occurred. What can the prosecution do to put you at ease while also obtaining the information that they need for trial?
What is a Proffer Agreement?
In simple terms, a proffer agreement occurs when a defendant and a prosecutor agree that if the defendant gives the prosecutor helpful information, that information will not be used against them in later proceedings. For example, suppose you have information regarding a committed crime that will help the prosecutor win their case. In that case, a proffer agreement will be created to grant you immunity or a plea bargain based on the information that you share. A proffer agreement serves as a mechanism to incentivize cooperation and information sharing between defendants and prosecutors, facilitating the pursuit of justice by uncovering crucial evidence and potentially aiding in the prosecution of other individuals involved in criminal activities.
Grand Jury Investigations
A grand jury investigation examines the evidence presented by the prosecution to determine if there is probable cause to believe that a crime has been committed and if the accused person should be formally charged and brought to trial. Unlike a trial jury, grand juries do not determine guilt or innocence, they simply decide whether or not there is enough evidence to go to trial. Grand jury proceedings are conducted in secret, meaning that the discussions, testimonies, and evidence presented are not made public unless later disclosed during a trial. This secrecy allows witnesses to provide information without fear of retaliation and encourages more candid testimony. During this time, a proffer agreement may be introduced to induce necessary information for the case.
Proffer agreements are used in grand jury investigations to gain a greater scope of evidence since testimonies are more likely to be more accurate when individuals do not have a fear of their words being used against them. There are two types of immunities that proffer agreements can stipulate: “use and derivative use immunity” and “act of production immunity”. The first type of immunity states that the jury cannot use anything from the proffer session as direct evidence in criminal proceedings. The second type of immunity protects a subpoenaed individual from being prosecuted based solely on documents or other evidence. It is important to note that the specific terms and protections provided by a proffer agreement can vary, so it is crucial for individuals to consult with an attorney to fully understand the implications and limitations of their agreement.
How is a Proffer Agreement Used?
During criminal investigations, many people are hesitant to share the entire truth because they are unsure about how the information they possess could possibly be used against them. While proffer agreements mitigate this fear, there are certain pitfalls.
Many proffer agreements are informal, and many formally signed proffer agreements contain clauses specifically stating that immunity is not always guaranteed. There is always the chance that the post-proffer deal will fall apart, and the government can choose to indict you based on the information that you have shared. If certain conditions of the proffer are not met, especially if the witness does not fully cooperate, legal action can be pursued based on the evidence provided. Additionally, even if the government is prohibited from using the exact information you shared, they can still follow leads and further investigate the information that you share. Many proffer agreements contain clauses that allow the government to use your proffer statement as grounds for impeachment if it is inconsistent with what you say on the witness stand. Once impeached, the entirety of your proffer statement can be used against you in the trial.
It is important to note that a proffer agreement does not automatically guarantee immunity or a favorable outcome for the witness. The information provided must be deemed valuable and substantiated, and the prosecutor retains the discretion to decide how to proceed based on the proffered information. While proffer agreements are valuable, it is important to navigate the process carefully and with the help of a knowledgeable legal representative.
Given the risks of proffering, it is essential to have an experienced, trustworthy attorney by your side throughout the process of such a criminal investigation. Legal representation will ensure that defendants make informed decisions and protect their rights throughout the process. A good attorney will be able to properly advocate for you by reading and negotiating the proffer agreement in your favor and monitoring your proffer session. For all inquiries, please contact Inna Fershteyn, Medicaid Fraud Attorney, at (718) 333–1233.