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.

Discovery of Statements

Statements made by the defendant to a prosecutor during a proffer interview are discoverable in New York, and defendants should demand the notes of prosecutors and their staff in order to gauge the accuracy of the notes and to properly anticipate any adverse use of those statements by the prosecution at trial since prosecutors may use such statements to contradict what the defendant says at trial and during sentencing.

Defense counsel would be well-advised to demand any notes that the prosecutors, their paralegals or investigators took during the proffer interview in order to be prepared for any challenges that might arise from the prosecution's use of the defendant's statements.

The New York Court of Appeals in People v. Remaley, 26 N.Y.2d 427, 429 (1970) has clearly established that defendants are entitled to all statements they make to police or other law enforcement officials. The court wrote that this right was necessary for a defendant to “intelligently prepare his defense” whether or not the statements were given voluntarily, since the content of the statements could illuminate the defendant's guilt or innocence.

All of the defendant's statements are discoverable even when the prosecution does not intend to introduce them at trial. See People v. Utley, 353 N.Y.S.2d 301, 308 (Nassau Ct. 1974). Nor does the application of this right to discovery hinge on whether the prosecution means to use the defendant's statements as evidence in its case-in-chief or only for the purpose of impeachment. See People v. DiMatteo, 365 N.Y.S.2d 126, 127-128 (Richmond Ct. 1975). Neither the expectation that parties will reach a plea bargain nor the “queen for a day” provision of a proffer agreement nor the fact that the statements have been recorded or written by prosecutors or their staff is a bar to the discovery of defendant statements made to public servants engaged in law enforcement activity. See CPL §240.20(1)(a).

The right to obtain all of the defendant's statements described in Remaley has been codified by CPL §240.20(1)(a), which clearly and unambiguously requires the prosecution to provide to the defendant “[a]ny written, recorded or oral statement of the defendant […] made, other than in the course of the criminal transaction, to a public servant engaged in law enforcement activity or to a person then acting under his direction or in cooperation with him.” CPL §240.20(1)(a) was drafted broadly, and the expansive power that it grants to defendants has not been narrowed in the time since its adoption. By the plain meaning of the statute, a defendant's statements made during a proffer interview are clearly discoverable by the defendant.

A defendant's right to obtain a prosecutor's notes of the defendant's statements taken during a proffer interview was discussed and affirmed in People v. Wyssling, 372 N.Y.S.2d 142 (Suffolk Ct. 1975) which relied on Remaley, supra. The court in Wyssling explicitly addressed and confirmed that a prosecutor taking a defendant's interview pursuant to a proffer agreement is “engaged in law enforcement activity” and rejected the prosecution's argument that the defendant's “non-custodial” and “voluntary” statements were non-discoverable. Id. at 145 (“The voluntariness of defendant's statements would affect their admissibility at trial, but does not limit their discoverability.”).

The court also explicitly rejected the prosecution's contention that its notes from the proffer interview were exempt from discovery as attorney work product pursuant to CPL §240.10(3). It declared that prosecutors may not shield defendant statements from mandatory discovery by placing them beside privileged material “into a report which is then characterized as exempt.” The court explained that in the event that the defendant's statements are recorded in a document that contains material that is exempt from discovery, the exempt material “may be excised or redacted.”

Additionally, the Wyssling court found that a defendant's statements are discoverable “regardless of the label affixed to the document in which they are contained,” whether they are recorded as verbatim quotations or a summary of the statements, and whether or not the defendant personally acknowledges or executes those statements. Wyssling, 372 N.Y.S.2d at 145. See also People v. Harrison, 364 N.Y.S.2d 760, 764 (1975) (“If [defendant's oral statements] are summarized, abridged, referred to, or reflected in any book, record or paper in the possession of law enforcement personnel, they are subject to discovery.”)

A defense attorney might neglect to demand prosecutors' notes from a proffer interview because the defense attorney appeared with the defendant at the interview and took his or her own notes of the defendant's statements. However, this would be a mistake, since different people may transcribe or summarize the same statement using different language. Moreover, disputes may arise concerning what a defendant actually said during the proffer. Knowing in advance what the prosecution has written about what the defendant said during the proffer is essential to preparing for such a dispute.

Co-Defendant Statements

A co-defendant's statements made to the prosecution during a proffer interview may also be discoverable pursuant to Brady v. Maryland, 373 U.S. 83 (1963), its progeny, and its codification in New York State law at CPL §240.20(1)(h). In Brady, the U.S. Supreme Court famously held that the Due Process Clause of the Fourteenth Amendment forbids prosecutors from suppressing evidence which is favorable to a defendant and which is “material either to guilt or to punishment.” Brady, 373 U.S. at 87. This principle is formally incorporated into the discovery law of New York State by CPL §240.20(1)(h), which requires the prosecution to provide a defendant with anything to which he or she is entitled under the U.S. Constitution.

Defense counsel should demand the prosecution's notes of a co-defendant proffer interview under the authority described in Brady as well as under CPL §240.20(1)(a), since those notes may contain favorable evidence which is material either to guilt or to punishment. In New York State, the prosecution will only be found to have violated Brady if the defense specifically requested the exculpatory material. People v. Ennis, 872 N.Y.S.2d 364, 371-372 (2008).

Conclusion

The defense is entitled to the prosecution's and other law enforcement personnel's notes regarding any statements made by the defendant. Proffer interviews are no exception. Defense counsel should demand these notes during pretrial discovery, or else risk surprise at trial or during sentencing when the prosecution seeks to impeach the defendant using a summary or notes of a defendant's statements which may be inconsistent with the defense's own record of those statements.

Daniel N. Arshack is managing partner of Arshack, Hajek & Lehrman. Matthew Reisman is a litigation associate at the firm.