In the course of a federal criminal prosecution, clients often seek to cooperate with the government to obtain a better sentence. Assuming the characteristics of a discerning shopper looking to buy a new car, the government subsequently requests a test drive with the client to prove his or her worth as a cooperator and to ultimately determine the real value of the information being provided.
This client audition for the government takes place in a “proffer session.” The lawyer for the client will be present, taking copious notes in order to have the most accurate memorialization of what was discussed—to include as further support of the government sponsored motion for a downward departure at sentencing, or to have at the ready in the event of a failure of the government’s recollection that could ultimately lead to action to enforce a cooperation agreement. These notes are truly essential for both the attorney and the client since the government serves as the sole arbiter as to whether the client is deserving of a cooperation agreement and the beneficiary of the government’s motion for a downward departure based upon the client’s substantial assistance.
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