More on Proffers

January 21, 2014

Tuesday, January 21, 2014

Good afternoon:

I mentioned proffers in yesterday’s post and cross posted it at Firedoglake and the Smirking Chimp. Several people had questions about them, so today’s post features my answers to some of their questions.

I do get that it is sort of an off-the-record “preview” of what kind of information would be given.

It is on the record with an investigator present taking notes.

Wait…what? I am just a layman, but it seems like you have been less than precise on how a proffer works. I mean, you say that anything said in that “he cannot use any information disclosed during the proffer in that trial” if the prosecutor turns it down, but what about information they already have, or that they get through other channels that happens to coincide with the info he gives in the proffer?

The proffer rule applies to statements made during the proffer.

Previous or after acquired information from other sources of information relevant to the guilt of the person who made the proffer would be admissible, but the government cannot call the investigator who was present during the proffer and ask him or her to testify regarding what the person said at the proffer.

The same rule would apply at the person’s sentencing, if he were to be convicted by a jury.

There are important exceptions to this rule:

(1) If the person who made the proffer testifies at his own trial in a manner that contradicts what he said during the proffer, his statement during the proffer would be admissible against him as a prior inconsistent statement.

(2) If the government can show that it independently obtained evidence that was disclosed during the proffer or evidence that could have been derived from the proffer, it can introduce that evidence at trial. This situation occasionally happens and requires a hearing outside the presence of the jury.

(3) The rule prohibiting the use of information disclosed during a proffer does not apply to false statements or admissions to unrelated criminal misconduct. For example, a person making a proffer in the Bridgegate case who suddenly blurted out that he was a serial killer and produced a map showing the locations of buried victims could not use the rule to prevent the use of that statement and map against him in a subsequent homicide prosecution.

Maybe I’m missing it.

You are forgetting about the 5th Amendment. No one can be compelled to testify against himself. Because a person has the right to remain silent and refuse to answer questions, the government cannot compel him to answer any questions that might tend to incriminate him.

If a suspect voluntarily decides to give a statement, anything he says can be used against him, unless he’s giving a proffer for the purpose of plea bargaining.

The proffer protection rule is designed to encourage plea bargaining by allowing a defendant to make a proffer without fearing that the proffer will be used against him, if plea negotiations are unsuccessful.

A suspect or defendant in a criminal case cannot avoid prosecution by admitting guilt during a proffer. The prosecution can still prosecute the suspect or defendant with all of the evidence it has gathered, if no deal is reached. It just can’t use the admission of guilt or confession that was disclosed during the proffer.

There are 2 types of immunity: transaction and use immunity.

Transaction immunity means the person cannot be charged. We rarely see transaction immunity anymore.

Use immunity means the information provided during the proffer cannot be used against the person.

Finally, the vast majority of proffers do not result in use immunity. They result in guilty pleas to reduced charges (charge bargaining) or lower sentencing recommendations (sentence bargaining).

Prosecutors have most of the power. A defendant who makes a proffer either accepts what the government is willing to offer or goes to trial.

Defendants would not be making a proffer, unless they were pretty sure they would be convicted at trial.

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