In federal criminal cases, some of the most consequential decisions are made long before trial — often before an indictment is even returned. Two tools that frequently shape the direction of a case at these early stages are proffers and reverse proffers. Understanding the distinction — and the strategic considerations behind each — is critical.
What Is a Proffer?
A proffer is a meeting in which a target or defendant, accompanied by defense counsel, provides information to the government. The goal is typically to explore cooperation, obtain a favorable plea offer, or position the case for a reduced sentence. It is best done in person, but in rare cases can be done by video.
Before any such meeting occurs, the government almost always requires a written proffer agreement (often called a “Queen for a Day” letter). In modern federal practice, these agreements virtually always incorporate the protections of U.S.S.G. §1B1.8. Without those protections, meaningful proffers rarely occur.
Under §1B1.8, statements made during a proffer generally can’t be used to increase the target/defendant’s potential Guidelines range for sentencing, including offense level calculations, relevant conduct determinations, or sentencing enhancements. That protection, however, is not absolute.
The Limits of Proffer Protection
Even with §1B1.8 protection, proffer statements can still carry real consequences. Proffer agreements typically permit the government to use the information:
- To rebut inconsistent statements or testimony offered by the target/defendant
- To pursue investigative leads derived from the proffer
- To assess the target/defendant’s truthfulness and completeness
- To determine whether the target/defendant has breached a cooperation agreement
In addition, §1B1.8 does not shield information the government already possessed or later obtained from independent sources.
In short, a proffer is not immunity. While it usually does not raise the Guidelines range directly, a poorly executed or inconsistent proffer can derail negotiations, eliminate cooperation opportunities, or materially worsen the defendant’s posture.
Preparation for a proffer is key. It astounds me when I hear of defense lawyers who throw their clients into proffers with minimal prep. Proffers almost always involve intense and thorough questioning by seasoned members of law enforcement. Lying to them is a horrible idea (and a crime!). I always advise my clients that you don’t have to go this route, but if you choose to, you better tell the truth! DO NOT LIE! Withholding relevant information isn’t any better. Always assume they know more than you think they do. Even if they don’t know it now, their investigation may continue by questioning others and your lie may be later exposed.
A proffer may be the first time the prosecutor will see or hear your client, and first impressions are lasting. A client should be respectful, truthful and reliable. I discuss all aspects of the proffer with my clients in great detail. One tip: I’ve found that coming to the proffer with corroboration of any information being provided is a rewarding strategy.
What Is a Reverse Proffer?
A reverse proffer turns the process around. Instead of the defendant providing information, the government presents the evidence it has. This “show and tell” carries little if any risk, and may include the presentation of documents, recordings, cooperating witness summaries, surveillance, or a detailed explanation of the prosecution’s theory. Many federal prosecutors now like to present it all in a PowerPoint.
Reverse proffers are often used to:
- Demonstrate the strength of the government’s case
- Encourage a plea resolution
- Narrow disputed issues
- Pave the way for a more productive proffer session
During a reverse proffer, the target/defendant typically says little or nothing. It is primarily an opportunity to evaluate exposure and options without incurring additional risk. It can lead to quicker and more effective plea negotiations.
Bottom Line
Knowing the difference between proffers and reverse proffers is critical to effective representation. I recently heard about a defense lawyer who brought his clients to what he thought was a reverse proffer. But when they were all in the room, the prosecutor began demanding incriminating answers from the clients, leading to a shouting match between the lawyers as the whole thing fell apart. Whether the prosecutor sandbagged defense counsel or defense counsel failed to properly clarify the terms of the meeting is unknown to me. But the end result was a busted proffer, an angry prosecutor, and a situation that was now worse than before the meeting.
Proffers and reverse proffers are powerful tools, but they are not routine formalities. They require strategic decisions that can shape the course of a federal case — sometimes irrevocably. Handled correctly, they can open doors. Handled carelessly, they can close them. That’s why these decisions should never be made casually — and never without the thorough advice of experienced federal defense counsel.