What Is a Proffer Agreement


What is a proffer agreement? Your helpful attorneys from the firm of Scrofano Law P.C. provide answers to the question and more. Contact us for a consultation.

Overview of Proffer Agreements


On police detective or FBI agent TV shows, it’s common to see someone accused of committing a federal crime brought in for questioning in a criminal investigation and offered a deal if they agree to “testify” or cooperate. In real life, such a deal is known as a proffer agreement.

The proffer agreement is a written contract between a federal prosecutor and a defendant, or a person under criminal investigation, where the defendant agrees to provide the prosecutor with useful information. The statements they made will not be used against them in future criminal proceedings.

However, when the defendant’s testimony does not match their statements or if the defense lawyer attempts to challenge the evidence that contradicts the defendant’s statements, most proffer agreements permit the prosecutor to introduce statements made during plea negotiations.

In other words, the statements will be used to impeach the defendant. During a trial, impeachment is the process of discrediting or undermining a witness’ credibility by presenting evidence or asking questions that contradict their testimony or reveal bias, inconsistency, or false statements.

Typically, proffer statements are made with the understanding that the prosecutor will either grant them immunity from federal criminal prosecution or offer a favorable plea deal regarding sentencing. Additionally, their proffer statements are expected not to be used against them later.

Proffer agreements often require significant negotiation, so it is important that you consult a Washington DC criminal lawyer before agreeing to enter into a proffer agreement to protect your legal rights.

Does a Proffer Agreement Guarantee Immunity?

Proffer agreements do not guarantee immunity, but the defendant and government informally agree to a certain amount of leniency. Defendants who cooperate might get a less severe sentence recommendation in exchange for their cooperation. The defendant will be provided with several important benefits in exchange for valuable and accurate information.

Although proffer agreements state that no concrete promises can be made about the outcome of the defendant’s case, they usually also state that the government will not use the defendant’s information against them unless in very limited circumstances.

Additionally, if the defendant is charged and convicted, the government agrees not to attempt to increase the offense level based on statements made during the proffer session. A government can still seek enhancements according to the Sentencing Guidelines for certain facts that can be considered independently of the proffer.


When Is it Best to Enter a Proffer Agreement?

With a proffer agreement, defendants can disclose everything they know about the investigation to federal prosecutors and law enforcement agents with the assurance that their words won’t be used against them in the future. Providing information to the federal government is the most common method of cooperating. It makes sense to agree to a proffers session when:

  • The defendant faces substantial prison time

  • A trial carries significant risks

  • Participating in a proffer session might benefit the defendant significantly.

There are two kinds of proffer interviews: those conducted before charges are filed and those conducted after charges have been filed. If charges have not yet been filed, the defense can use the proffer interview to convince the prosecutor not to prosecute or to reduce the severity of any charges if they are imminent.

A defendant and their attorney may also be able to convince the prosecution to lower their charges or be lenient in their recommendations if formal charges have already been filed and indictments have been obtained.

What Happens at a Proffer Interview?

A proffer session or interview is a meeting with a criminal defendant or someone under investigation, a federal prosecutor, and a federal agent. Prosecutors usually ask questions while agents take notes that will later be used for preparing written summaries of interviews. 

A primary purpose of the exchange is for the defendant to provide the prosecutor with any verbal, written, or electronic communications, including emails, bank statements, video and audio recordings, and other information that might be useful to the prosecution.

The defendant is expected to disclose all information they know about the federal offense under investigation and anyone involved. Therefore, they must tell the truth without omitting any relevant information, and they must also refrain from minimizing their own involvement or overstating criminal behavior by others.

Those making proffers may have a lawyer present, who may participate in the interview as needed. For example, a lawyer might ask clarifying questions if a particular response confuses prosecutors or creates a misimpression. Since proffers are voluntary, the individual may end the discussion unilaterally at any time.

Risks of Entering into a Proffer Agreement

Proffer Agreements should not be entered into lightly. While there can be significant benefits gained, there are also substantial risks, including the following:

  • Depending on the quality of the information provided, immunity or a plea agreement may not be granted

  • There is a possibility that the witness will admit criminal responsibility for matters that are difficult to prove or that were not originally contemplated by the government.

  • New evidence turned up as a result of your proffer interview could be used against you.

  • Untruths, omissions, or inconsistencies of material facts about the alleged crime automatically void the agreement.

  • The government has the discretion to determine what is true and valuable information.


Why You Should Contact Scrofano Law for Your Federal criminal cases

You should never enter into a proffer agreement or deal with any matter in the federal criminal justice system without the guidance of an experienced and knowledgeable federal criminal defense attorney. Your skilled criminal defense counsel can help you analyze the relevant factors and limit potential risks to the fullest extent possible.

If you are a target or a defendant in a federal case, you need a federal fraud charges defense lawyer who knows how the proffer process works and can effectively represent you during the interview and subsequent trial.

You can consult with the lawyers at Scrofano Law, PC, to determine if entering into a settlement with the government is in your best interest. We can also determine the scope of your proffer interview and negotiate favorable terms with the prosecution on your behalf.

Call us today for a free consultation if you are facing a federal conspiracy charge.


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