A Former Client’s Perspective: How to Prepare for a Proffer
There are few things in life as frightening as being the subject of a criminal investigation. At some point, you and your lawyer may decide that the best course of action is for you to go and speak with the prosecutor and tell them everything you know about the crime in question in preparation for a plea deal or for charges to be dropped against you. Such a meeting with the prosecutor is called a “proffer.” The purpose of this document is to help you prepare for a proffer from the perspective of someone who has been in your shoes before.
Trust your attorney.
They are there to protect you. Your attorney is not the prosecutor or the judge, so while it may feel embarrassing to reveal certain details about your involvement in the case being investigated and the other people who are subjects of the investigation and their relationship to you. Truly, there is no need to be embarrassed; your attorney has likely heard similar stories before. If you are not sure whether or not a particular detail is relevant or important, tell your attorney and let them decide whether it should be part of the proffer or not. You also need to search all documents you have that could be relevant to the case or any other people involved, including your emails and text messages. Again, turn all of this over to your attorney and let them decide what is or is not relevant. If you are not completely truthful with your attorney, even the best attorney will not be able to help you achieve the optimal result for your case. Also, if you lie to the prosecutor during the proffer, you will have committed the federal crime of lying to a government investigator. The last thing you want to do is commit a crime other than the one with which you are already being charged.
Be humble and sincere throughout the investigation.
Even if you don’t think that you committed a crime, that your crime was “minor,” or that the prosecutor is treating you unfairly, accept that you have made mistakes of judgement. This humility will help you to effectively communicate with and assist your attorney. Humility will also help you to make an effective proffer, as the prosecutor needs to see that you are accepting responsibility for your mistakes and not attempting to minimize your role in any criminal activity.
You need the emotional support of someone other than your lawyer during this time.
It’s important to remember this: your lawyer is your professional representative, not a friend or loved one. Your lawyer’s job is to tell you your options and the realities of your case, not to make you feel better. However, it is important for your emotional health to find someone you can trust and rely on. If you are married, your spouse is a good candidate for this role because everything you tell them is privileged. This means that the government cannot force them to reveal what you said to them in private. If you confide in a person who is not your spouse, these conversations will not be privileged, so it’s important not to share any details of your case. It is okay to speak in general terms such as what you are being charged with and what sentence you may be facing, as well as your feelings and worries about the situation. Having a close friend or family member to support you can help your stress levels during this time.
Do not post about your case on any social media platform. Keep your trusted circle small.
Find activities to take your mind off your case.
More often than not, criminal cases move slowly. It is important to find activities to take your mind off the upcoming meetings and the unknown future. Participate in social activities, watch movies, read books, take up painting or meditation, or find other hobbies you enjoy. It will also be beneficial to take care of your physical health during this period. While it may be difficult not to turn to alcohol or comfort foods during this stressful time, eating right, exercising, and getting plenty of sleep will help ensure you are in the best mental and physical state when it is time to meet with the prosecutor.
Make your opinions known while respecting your lawyer’s expertise.
Although your attorney is the expert, you are part of the team whose goal is to achieve the optimal outcome for you at the end of the day. Respect your lawyer’s expertise, and make your opinions known. Remember that you lived the facts and are the primary source of information about the events as they unfolded. Do not hesitate to correct misperceptions by your attorney–– they weren’t there when who did what or when a certain event occurred. Also, realize that part of your attorney’s job is to give you an honest assessment of your case and how it will be viewed by the government. Getting angry at your attorney or blaming them for the government’s actions will not help you achieve your goals.
Consider the question asked before answering.
When you arrive at the proffer, the agents and prosecutors present will tell you their specific concerns and questions about your case. Your attorney will––hopefully––learn these concerns in advance and prepare you for answering the questions completely and honestly while not offering additional facts beyond those that are requested. Your attorney will be sitting next to you during the proffer to hear the questions and answers. They may ask for a break at some point to confer with you or if they feel that you are beginning to tire out or lose focus. You may also ask for a break at any time to use the restroom or get a drink, although the prosecutor may ask you to answer any pending question prior to such a break. You can expect the prosecutors and agents to be professional and perhaps even friendly, but keep in mind that they are not on your side.
During any break, feel free to ask your attorney questions. They may also use this time to remind you to answer questions audibly, to speak slowly, and to suggest potential clarification if it seems that one or more of your answers may have been misunderstood.
If you do not understand a question the prosecutor has asked, it is perfectly acceptable to say so and to request that the question be rephrased. Also, you may not know the answers to every question, or you may not remember certain details. If “I don’t know” or “I don’t remember” is a full, complete, and truthful answer, then you should not hesitate to give such an answer.
While the government has your attorney’s written proffer if one was given, your actual proffer is what you say at the session. So, they will start from the beginning and ask you the same questions to which your attorney has already provided written answers; they need to hear those answers on the record from you directly. They will be comparing your verbal answers with the written proffer submitted by your attorney, so make sure that you review the attorney’s proffer before going into the session.
Be prepared to answer additional questions.
You can also expect to be asked additional questions beyond what was submitted in the written proffer. Your answers to these questions can be critical, and your attorney will try to predict these questions before the session. For example, “Why did you not suspect that your behavior was illegal?” or “ Didn’t you think it strange that you were being offered so much money?” or “Given what you knew about Mr. X, why didn’t you suspect that he was not telling you the truth?” Answer each question as asked. If you’re unclear what the prosecutor is asking, seek clarification; for example, “do you mean only the money I paid Mr. X relating to this transaction, or do you mean all the money I ever paid Mr. X?”
Try not to be argumentative or defensive in response to questions; your attorney will aggressively advocate on your behalf both before and after the proffer. Nevertheless, it is appropriate and important for you to correct factual inaccuracies in the government’s questions or statements, but you must do so in a respectful, calm, matter-of-fact tone. For example, “I actually did not know, at the time, that Mr. X had been convicted of XYZ.”
Leave enough time for the proffer session.
It is imperative that you leave enough time for this proffer session. If you can, clear the entire day. It may take longer than expected, and if you are anxious about child care or getting to another appointment, it may come across in your testimony as nervousness or even untruthfulness. Also, prosecutors are not required to offer you this chance to proffer and are likely to be unimpressed if you end the session early.
If you are a target or a defendant in a federal investigation and you are considering cooperation with the government, you need an experienced defense counsel that understands the proffer process and who can effectively advise you whether you are a good candidate to enter an agreement with the government.
Contact us today to speak with an attorney.
Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation.