Understanding Proffer Sessions

John L. Calcagni III
Understanding Proffer Sessions

A proffer session is where a criminal defendant meets with prosecutors to discuss his or her case.  Parties present for these meetings normally include the defendant, his or her attorney, the prosecutor(s) pursuing the defendant’s case, and law enforcement agents who participated in the underlying criminal investigation.  

There are two types of proffer meetings: 

  • defendant’s proffer 
  • reverse proffer.   

Both types of proffers are voluntary to attend.  These meetings are typically confidential in nature.   They may or may not be recorded by audio or video (less often) means.   However, parties to the proffer session may take notes.  

 Defendant’s proffer  

A defendant’s proffer occurs where the defendant and his or her lawyer meet voluntarily with members of the government.   

The proffer agreement or contract

A proffer agreement or contract is often used to provide the defendant with protection that anything he discloses cannot and will not be used against him in the pending or other prosecution.   This is designed to encourage the defendant to speak freely and truthfully about his or her involvement in criminal conduct, or knowledge of crimes committed by others.  

The session

The session is then led by the prosecutor and law enforcement agents who ask questions of the defendant regarding his actions or knowledge of others’ criminal conduct, such as charged and uncharged co-conspirators.   

Initially, the government knows the answers to many of the initial questions posed.  This is done to test the defendant’s credibility to ensure he or she is being truthful. Once the government is comfortable with the defendant’s truthfulness, other questions are then asked to confirm known information, fill in the blanks for partially known information, or to educate the government about new information.   

The government may also ask the defendant, during a proffer, to review evidence, answer questions about evidence, identify photographs, and provide passwords for digital devices such as cellphones, computers, and tablets.  

Upon conclusion of the meeting, the government agents in attendance typically create a written proffer report detailing the information disclosed.   

Do proffer sessions provide the defendant cooperation credits?

A proffer session may or may not occur as part of a cooperation agreement.   The first proffer session is usually done with no promises by the government to provide the defendant with any cooperation credit.   

The government uses the first session to gauge the defendant’s credibility, as well as the quality of knowledge and/or information offered.   If the meeting goes well, the government may offer the defendant the opportunity to enter into a cooperation agreement.   

The government is never obligated to offer a criminal defendant a cooperation agreement. If offered, the defendant is not obligated to enter the agreement.   

This decision, like the choice to attend a proffer, is completely voluntary. If the parties enter into a cooperation agreement, they will likely attend other proffer sessions as part of the government’s ongoing investigation, in advance of trial for other defendants, and/or potential grand jury appearances by the cooperating defendant in connection with the investigation and prosecution of others.

Safety valve interview  

An initial proffer session may also be used for the so-called safety valve interview voluntarily attended by defendants who seek to escape applicable mandatory minimum jail sentences often associated with federal drug crimes.

Reverse proffer

A reverse proffer session involves a meeting with the same parties as a defendant’s proffer, but does not involve the government posing questions about the defendant’s misconduct or knowledge of others.  

Instead, these meetings are designed for the government to provide defense counsel and the defendant a presentation of its evidence in advance of trial.   

When do reverse proffers happen?

Reverse proffers often happen close in time to the government providing the defendant with a pretrial offer to resolve his case before trial.   The reverse proffer may outline some or all of the government’s trial evidence.  This is within the government’s discretion.  

The reverse proffer is designed to show the defense what prosecutor(s) expect to prove at trial.   

What’s the government’s desired outcome in a reverse proffer session?

By making this pretrial advance presentation, the government hopes the defendant will recognize the strength of the government’s case in order to encourage him or her to plead guilty instead of proceeding to trial.   

Attending a reverse proffer session is voluntary by the defendant.  Similarly, agreeing to host such a session is voluntary for the government.  Reverse proffers are not used in all cases, and the decision to offer one is completely within the government’s control.

There are no time limits for a proffer session.  There is also no limit on the number of sessions that may occur.   Attendance to any proffer is completely voluntary by the defendant.  No criminal defendant may be forced to attend a proffer session.  The defendant’s lawyer is most often always present for the proffer.    

Defense counsel may take notes and even pose questions during the session of the defendant and others in attendance, to include prosecutor(s) and law enforcement agents.   A defendant may also speak privately with defense counsel at any time during a proffer.    Because proffers are voluntary, a defendant may terminate a session at any time or decline to answer certain questions or speak about certain subject matter(s).  

Questions about proffer sessions?

If you are a criminal defendant and have questions about the pros and cons of attending a proffer session, contact the Law Office of John L. Calcagni III, Inc at (508) 213-9113 for a free consultation.