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Federal Prosecutors and “reverse Proffers”: Do’s and Don’ts

Kish Law LLC

Even though the pandemic has slowed the federal courts here in Atlanta and throughout Georgia and the rest of the country, federal criminal investigations continue apace.  Those of you bored enough at home to spend time on this blog recognize that as a criminal defense lawyer specializing in federal criminal cases, I post on various aspects of this kind of work, the people involved, and various tips and tricks I’ve encountered over my 37 years doing this kind of work.  Today’s topic: the “reverse proffer.”

First let’s discuss the “proffer.”  I tell clients that the proffer is kind of like when you go car shopping and take one of the vehicles out for a test drive.  The dealership is not obligated to sell, you are not obligated to purchase, each side kind of wants to see how the situation might look if it all works out.  In a proffer, the person under investigation goes in (with his or her attorney, PLEASE!).  The prosecutor and agents ask questions, but the person’s answers are basically off-limits if the person is later prosecuted, with several major exceptions that we have discussed on other occasions. The prosecutor and agents want to hear the person’s answers, to see if they want to work out some kind of “deal” in return for the person’s information or possible testimony.

A “reverse proffer” is when the prosecutor feels that he or she might be able to convince the person under investigation that the Government has a very strong case. The prosecutor brings the individual under investigation and their counsel to the office (or everybody gets on a video call) and the prosecutor and agents lay out what they feel are the strongest parts of the Government’s potential criminal case. Such a prosecutor does this in the hopes that the person under investigation will realize that the game is over, and the person will tell his or her lawyer to negotiate plea agreement, thus saving the prosecutor the work of actually making a case.

Experienced federal criminal defense lawyers do these reverse proffers often.  But, if anyone reading this is a client considering a reverse proffer, or an attorney with little or no experience in these matters, here are some things to keep in  mind.

First, lay out the ground rules in writing.  This seems obvious, but my heart falls when I hear about lawyers who bring their clients into a reverse proffer without a written agreement, and things then go badly for the person.

Second, the attorney absolutely MUST school the client about how he or she will react to anything said during the reverse proffer session.  The client must not react, speak, fidget, or give any indication one way or another that he or she agrees or disagrees with anything that is said during the session.  Prosecutors and agents often gain valuable insights from a client’s reaction to certain information, so do not give that to them.  Tell the client ahead of time that he or she needs to be like a statue during the entire session.

Third, the lawyer should try to somehow record or document everything that anyone on the government side of the table says during a reverse proffer session.  This might be the only time that the prosecution lays out some of their cards prior to a trial, and down the road there are some nifty ways to get such statements or representations into evidence through the hearsay exception for statements made by an agent of a party-opponent.

Finally, the lawyer should always try to reserve the right to make a counter-presentation at a later date.  Sometimes prosecutors and agents simply get it wrong, and it can often be very impactful to prove that their assumptions were mistaken.  In other words, try to avoid a situation where the prosecutor says that the only reaction after the reverse proffer is the on-off decision of guilty plea or trial.

Reverse proffers can be helpful, and I hope these thoughts help others make the best use of these sessions.

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