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Cooperation – Proffers – Offers of Proof – The Risks And Benefits Of Turning State’s Evidence In Colorado – Almost 95 % of all criminal cases are resolved by a settlement known as a plea bargain. As in all negotiations, each side is seeking to get what they want in exchange for giving up as little as possible.
In Colorado drug cases – cooperation in some of the most serious cases sometimes becomes the primary method for leveraging the best possible result when the state has a very strong case against you.
One way to convince the prosecutor and law enforcement authorities that you have something they want – with the least amount of risk – and the greatest benefit is called an informal PROFFER.
Before a proffer, (an informal meeting with the DA and law enforcement, usually the case agent), is set up, the defense attorney typically has a few discussions with the DA as to the intended scope of the meeting and what the client may expect to gain from the proffer.
One thing can not be stressed enough – the defendant must be 100% truthful at the proffer session. If the defendant is found to have lied, their credibility is “shot” and everything in their statement will be tainted. If this happens, the opportunity for the most favorable plea bargain is lost. Furthermore – and perhaps even a worse situation – the DA’s office can still use the information the defendant provides to follow-up on leads and conduct further investigations. If those subsequent investigations reveal new evidence against the defendant, that evidence can be used to prosecute and convict the defendant.
The dictionary definition of “to proffer” is to “offer, hold out, extend, tender, volunteer, submit, or to give.”
In the context of a Colorado drug crimes case – a proffer is the time when a defense lawyer allows his client to meet with prosecutors and or investigators at which meeting the accused offers “intel” or intelligence to the DA or the defendant’s “services as a government witness” to reduce the defendant’s ultimate exposure and as a means of entering into a plea agreement.
The proffer meeting or session usually takes place at the DA’s office. If it is a drug case, the case detective or agent, a junior DA, and some additional “experts” such as computer experts, forensic people and others may attend.
A Colorado drug crimes criminal defense lawyer should only consider a proffer when the lawyer believes that a favorable plea bargain will result. (See below) A successful proffer can lead to new arrests, drugs, weapons, search warrants, and Confidential Informant (“CI”) status that may also result in a long term ongoing relationship with law enforcement …with many benefits AND risks.
Prosecutors will not typically offer a proffer session when “the target “ involved is the main target of an investigation.
The DA also will not be “open” or interested in setting up a proffer session if it is believed that there is nothing to gain from the proffer. If the evidence in the case against the primary target is “air tight.” the information you provide must be very valuable for the prosecutor to even agree to a proffer meeting. Many times the decision to hold a proffer meeting turns on the prior relationship and respect a DA has for the criminal defense lawyer involved.
Sometimes referred to as a “debriefing” or a “queen for a day” agreement. Proffer agreements can be oral understandings or they can be in writing (a signed proffer letter). However a written agreement can be one sided in favor of the prosecution.
The better practice can be to engage in a proffer session pursuant to the Colorado Rule of Evidence Rule 410.
[toggle title_closed=”Click HERE to reveal a sample – well balanced – federal proffer letter.” title_open=”Close Content” hide=”yes” border=”yes” style=”default” excerpt_length=”0″ read_more_text=”Read More” read_less_text=”Read Less”]
An example of a Federal – Department of United States Department of Justice in Washington, D. C., Proffer Letter
1. Your counsel, (defendant’s attorney), will be present and will participate in the interview. You have been informed and understand that you may end the interview at any time or decline to answer any questions asked. During the interview, you will be truthful, fully candid, and complete in providing information concerning the matters about which you are asked.
2. The United States agrees that no statement made by you during the interview will be used directly against you in any legal proceeding, except that your statements may be offered in any legal proceeding to impeach your testimony and may be used in a prosecution of you for perjury, obstruction of justice or making false statements or false declarations.
3. The United States is free to follow up any leads derived from the interview to pursue its investigation and any subsequent prosecution of you or others.
This article addresses state based proffer meetings and not the more formal and less fair – federal forms of proffers that have devolved in recent years to very one sided traps for the unwary.
An experienced Colorado criminal defense lawyer will approach the “proffer” process carefully. If there is a trust based relationship between the prosecutor and the defense lawyer – that has endured the test of time – this step is less important. If there is unfamiliarity with the DA or law enforcement involved – a meeting prior to the proffer engagement makes more sense.
The goal of this first meeting is to lay out an outline the breadth, scope and subject matter of the possible proffer session. The experienced defense lawyer will conduct an arms length discussion with the DA to obtain some level of confidence about the process before agreeing to subject his or her client to the proffer session and to make certain that the actual proffer session has some measure of potential success.
The Colorado criminal defense lawyer must have a solid understanding of what his or her client can do for the state. By outlining the substance of what his or her client is expected to say during the proffer meeting, the defense lawyer can “gauge” the prosecutor’s reaction to the value of that information. The information or cooperation may be of little or of great value to law enforcement. The only way to find this out is to “feel out” the parties on the other side of the table.
It must be clear that these early revelations will be preliminary, unspecific and general in nature. These early discussions are purely “hypothetical.” This cautious approach, sometimes referred to an “attorney proffer,” is later tested at the actual proffer meeting. These early discussions are considered as purely settlement discussions – not binding on either the defendant – or usable by the government in any manner during any trial.
The nature of an “off the record” statement is to do – at a minimum – two things. The first is to explain a defendant’s role in a crime – their specific involvement in criminal activity,(and that of the others involved), with the goal of “mitigating” the prosecutor’s view of the defendant’s role in that crime.
The second is, if possible, is to gain the opportunity for a favorable plea bargain or advantage by cooperating with the government in the investigation and/or the prosecution of other – usually more important – targets. The proffer permits the state – through specialized law enforcement units, to “preview” the defendant’s information and then to make an evaluation of the truthfulness and importance of the information prior to entering into a final plea agreement.
The understanding here is to provide an “off-the-record” statement. Pursuant to plea bargaining Rule CRE 410, these statements cannot be used in any later criminal proceeding.
Proffers remain an important and necessary part of the drug crime plea bargaining process for the Colorado drug crimes criminal defense lawyer as he or she explores the options available to obtain the best result for the client/accused. On the other hand, red flags abound in this process that warn of the pitfalls that can result from variations in different prosecutor offices in terms of their policies and practices in this controversial area.
Before the proffer “session” some ground rules are usually worked out. These are a basic understanding of:
1) what you are likely to proffer;
2) what the contemplated plea agreement will look like.
Proffers hold some risk because – even though your words cannot be used against you at a subsequent trial, unlike true immunity agreements, proffers normally do not prevent the government from making derivative use of your statements.
Derivative use is using the information that you provide to follow up leads and conduct further investigations in other areas unrelated to your immediate case. If the additional investigations lead to new evidence, THAT evidence can be used to bring new charges against you.
Furthermore the DA will have a chance to see how you testify under the pressure of tough questioning as a witness and perhaps learn what your defense(s) would be at trial and here’s the rub – if you do NOT HAVE a defense – meaning your case is not “defensible” this makes no difference. The risks are, in the case that IS defensible, allowing the DA to be better prepared to cross-examine you at trial if you choose to testify. In addition, a greater risk exists that you could be prosecuted for other crimes you admit to during the proffer.. you MUST understand these risks BEFORE agreeing to the proffer.
The first question I must answer as a criminal defense lawyer is this:
How strong is the government’s case and how strong of a defense do we have?
If the defense to your drug case is strong, the second question is, do you have the resources to take the case all the way to verdict?
The third – if you are still convicted after a lengthy trial, what is your exposure at sentencing?
A lawyer should not even consider making a proffer unless he or she has thoroughly examined all of the possible scenarios under Colorado’s drug sentencing laws and then coupling that with an analysis of the client’s criminal history.
How specific and how good of a deal is being “dangled” in front of you if the proffer goes well and the DA gets what he or she wants? What are you getting? If the prosecutor is demanding a felony plea, does this deal still result in the loss of – say a professional license you hold, the loss of your home and car, the loss of your job. thus depriving you of your livelihood?
Do not consider a proffer unless:
Consider the following more comprehensive list of questions before you decide to make the proffer “offer:”
It follows from the foregoing comprehensive article on Colorado Drug Crime Proffers – that only a seasoned Colorado drug crimes attorney can perform the crucial work necessary to advise you on your decision to cooperate with the state of Colorado and then to guide you through the process and make certain the proffer turns out as planned.
Clearly – proffers are a high-risk venture within the Colorado criminal justice system. But under special and very limited circumstances, they may be a risk worth taking.
On the other hand, NO DECISION should be made without the guidance of an experienced and knowledgeable Colorado drug crimes criminal defense attorney to help you analyze all of the relevant factors and understand all of the potential risks.
ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author – A Denver Colorado Drug Crimes Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277.
If you are charged with A Colorado crime or you have questions about Cooperation – Proffers – Offers of Proof: The Risks And Benefits Of Turning State’s Evidence In Colorado, please call our office. The Law Offices of H. Michael Steinberg, in Denver, Colorado, provide criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.
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