Although securing a cooperation agreement after proffering to the government can lead to enormous benefits for those who successfully navigate the process, the negative consequences of a failed proffer are profound. Assessing the risks of whether to proffer and enter into a proffer agreement is an important part of federal criminal practice. These written agreements between federal prosecutors and a subject of a criminal investigation set the ground rules for the future use by the government of a defendant’s statements made during a proffer session.
The agreements typically involve a partial waiver of the protections provided by Fed. R. Crim. P. 11 and Fed. R. Evid. 410 which together provide that evidence of any “statement made during the course of plea discussions with an attorney for the prosecuting authority” is inadmissible against the defendant. Fed. R. Evid. 410(a)(4); Fed. R. Crim. P. 11(f). However, the Supreme Court held in United States v. Mezzanatto, 513 U.S. 196 (1995) that the protections afforded under Rule 410 can be waived in proffer agreements, thereby opening the door for a defendant’s statements to be used against him if plea negotiations fail.
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