You’re a defendant in a U.S. jail charged with drug trafficking. You want to cooperate, so your lawyer contacts the prosecutor and sets up a meeting. The appointed day arrives and you are brought to the courthouse and placed in the marshal’s pens. The agents involved in your case come to get you and take you to one of the “proffer” rooms, which are usually located in the courthouses.
The “proffer” room is a modest affair, nothing on the walls, a desk, and four or five chairs. You are brought to this room in handcuffs. Depending on the judicial district, the handcuffs may or may not come off. In New York the handcuffs are always removed. In Washington, D.C., if memory serves, they are not.
The prosecutor, at least two agents, a translator, and your defense lawyer are all in attendance. You are given a “proffer agreement” which states that the meeting does not mean you are officially cooperating. The meeting is a “first date” to determine if what you have to say is truthful and useful. If it is, the government may enter into a cooperation agreement with you.
The proffer agreement also states that anything you say at the meeting will not be used against you, with one exception. If you decide to go to trial or if at sentence you deny what you said at the meeting, the government is entitled to introduce what you said in order to refute your statements.
After you have read the agreement, discussed it with your lawyer and signed it, the prosecutor formally introduces himself, advises you that you have no obligation to speak with him and, if you want, you can still call the whole thing off. He adds that if at anytime you want to confer with your attorney you will be free to do so in private. You need only ask and everyone will leave the room for as long as you like. After conferring privately with your attorney, the prosecutor and the agents will return, and the questioning will continue.
At the start of the meeting the prosecutor stresses that truth is the most important consideration. You are then asked a final time if you still want to speak to the prosecutor. If you say yes, the session will commence.
In this first meeting 99 percent of the questions will be ones that the prosecutor and his agents know the answers to. They ask these questions to gauge your truthfulness. The questions can be so artfully phrased that you may be fooled into thinking the agents do not know the answers, and you may be tempted to lie or evade. But they do know the answers, and nothing will infuriate them more than if you lie. They may not show it, but the prosecutor and the agents will be fuming with anger. On the other hand, if you tell the truth they will be elated. There is nothing they like better than a truthful defendant.
But sometimes the meeting starts poorly because the defendant does not heed the prosecutor’s warning and decides to lie. A friendly prosecutor will pull the defense lawyer out of the room and tell him that his client is lying and that he should let his client know before the meeting is terminated. This scenario rarely happens because good defense lawyers never bring clients to a proffer session unless they know the defendant will be truthful. I have refused to arrange proffers for clients who have begged me to do so, specifically because I knew they were being less than honest.
Remember, no one has to cooperate. It is the decision of the defendant, and there is nothing more unseemly than a defense lawyer who keeps badgering his client to cooperate. But if you are willing to cooperate, tell the truth and do not withhold information. Withholding information is just as bad as lying.
When the meeting is over, everyone will rise and shake hands. Your lawyer will be permitted a few moments with you alone, after which you will be handcuffed, returned to the marshal’s pens and then returned to the jail. The prosecutor will usually tell your defense attorney how you did, although in most cases you will already know. Often the prosecutor will signal his satisfaction by suggesting more proffer sessions in the future.
You will see for yourself that, despite what you have heard, the government does not put words in your mouth; does not threaten you; does not ask you to lie; and does not ask you to identify people that you do not know.
However, the fact that you are sincere and tell the truth will only get you so far. If you cannot provide the government with useful information, the prosecutor will likely reject a deal and you will be left with a successful, but limited, “safety valve” meeting. This will allow a sentencing judge to go below any mandatory minimum drug sentence.