Often defendants in criminal cases elect to discuss their cases with the prosecution before and sometimes after an indictment. The discussion is called a proffer. During the proffer, one or more prosecutors and sometimes a detective or paralegal is present and may take voluminous notes of the proffer session. Generally, at the beginning of a proffer session, the prosecution and the defense enter into a “proffer agreement” colloquially known as a “queen for a day” agreement which requires that, if the case proceeds to trial, the prosecution cannot use the defendant’s words, even if they are self-incriminatory, in their case in chief against the defendant but, if the defendant elects to testify and testifies differently than how he or she did during the proffer session, he or she can be impeached, contradicted, by the different version of events that they may have given during the proffer session and the words spoken by the defendant can be used in a separate prosecution for perjury.
There are various reasons that defendants proffer, but mostly it is because they and their attorneys hope that the prosecution will either dismiss or reduce the charges against them. Alternatively, the prosecution can conclude that that information possessed by the defendant is useful to their case and a cooperation agreement can be entered into which could result in a benefit to the defendant expressed as a reduction in the charge or a recommendation of a reduced sentence after a plea. Since a defendant generally reveals the entirety of their defense and involvement in the charged offense during a proffer, it is most common that a proffer is followed by a plea of some kind. However, sometimes no acceptable plea bargain is reached and the defendant elects to proceed toward trial.
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