Proffer and Derivative Use Immunity

When someone finds themselves under criminal investigation or charged with a crime, they will face several extremely important decisions. In some cases, a combination of factors could lead the person to consider whether some form of cooperation with the prosecution might be the most beneficial road for them to take. In these relatively rare cases, an experienced criminal defense lawyer can guide their client through a procedure called a “proffer meeting” during which the client will be granted “use and derivative use immunity.”  


Before engaging in any cooperation or “free talk” with any prosecution agency, every wise person will consult with the best criminal defense attorney they can find. An experienced criminal defense lawyer will learn as much as possible from the client and analyze all the facts and potential evidence to help advise the client on the best path forward. If you are facing a criminal investigation or criminal charges, contact Stechschulte Nell, Attorneys at Law in Tampa for professional criminal defense counseling and representation. 



What Is a Proffer? 


A proffer, also known as a “free talk,” refers to a confidential meeting between a potential witness or defendant, with their defense attorney, and law enforcement officials or prosecutors. The purpose of the meeting is for the individual to “offer” to share information, usually in the form of statements, documents, or other evidence, in exchange for a promise that their statements and admissions will not be used against them by the prosecution.  


The primary objective of a proffer session is to encourage cooperation from individuals who possess crucial information about a crime or criminal activity. During a proffer, the individual can reveal pertinent details without fear that their statements will be used against them in subsequent legal proceedings.  


Key Elements of a Proffer Session 


Protection from Self-Incrimination: The information the witness or defendant shares during the proffer session cannot be used against them in a subsequent prosecution, except under specific circumstances. 


Unless the person “proffering” (offering) the information is assured that they won’t have the evidence used against them in court, they would have no incentive to participate in the process. That’s why the proffer is often called a “free talk.” The government prosecutors are extending limited immunity to the person proffering the information. But there are different types of immunity, and it is imperative that the person’s criminal defense lawyer get concrete assurance from the government about what degree of immunity is being granted. 


Use Immunity v. Derivative Use Immunity v. Transactional Immunity 


The three types of immunity that could be extended to a cooperating witness are use immunity, derivative use immunity, and transactional immunity. The differences between them are significant and misunderstanding which immunity is granted can lead to catastrophic consequences for the cooperative person. 


Use Immunity: Use immunity means that the government cannot use the statements or evidence provided by the proffer witness against that person in a prosecution. However, the government may use the statements of the witness to investigate new leads and develop new evidence against the witness. Under simple use immunity, the government could use the new evidence “derived” from the evidence given by witness against that same witness. As long as the government didn’t use the witness’s direct statements or evidence against them, it will not have violated the immunity agreement. 


Derivative Use Immunity: The better, more extensive immunity is called “derivative use immunity” because it prevents the government from using not only the witness’s direct statements and evidence against them, but it also protects the witness from any evidence derived through additional investigation based on the witness’s proffered information. It guards individuals from the “derivative use” of the information they share during a proffer session.  

Of course, neither use immunity nor derivative use immunity prevents the government from using evidence against the witness that was derived from entirely independent sources and investigation. While the witness’s cooperation would be considered mitigating and perhaps reduce the length and nature of their ultimate sentence, they might still be prosecuted. 


Transactional Immunity: The best and fullest level of immunity the government can grant is called “transactional immunity.” This means the government is barred from bringing any criminal prosecution against the witness involving a specified course of criminal conduct. For example, if a seventy-year-old shop keeper was beaten by one of three men robbing a store, possible charges could include robbery, conspiracy to rob, assault with intent to rob, and assault on a person over 65, among others. 


With transactional immunity, a cooperating witness would be protected from any and all criminal charges arising out of that robbery “transaction.” 


When Is Immunity Not Immunity? 


Everyone person who participates in a proffer session in exchange for immunity must recognize that the immunity is not absolute.  


There are several scenarios in which the government could prosecute the witness even after they entered into the immunity agreement. 


  • If the witness fails to tell the truth during the proffer, or if they exaggerate others’ guilt and minimize their own inaccurately, the government can consider that untruthfulness a breach of the agreement, freeing it from the obligation to honor the immunity. 


  • If the individual later chooses not to cooperate or go back on their proffered statements, the prosecution is permitted to use the original proffered information against them during trial. 


  • If the information provided during the proffer is discovered to be false, the person can not only be prosecuted for the original crimes, but they can also face additional charges of providing false statements to federal agents, a felony. 


Get the Guidance You Need with Stechschulte Nell 


It is crucial to emphasize that navigating proffer sessions and derivative use immunity requires careful consideration. Legal counsel is indispensable for individuals engaging in these processes to ensure that their rights are protected, and the potential benefits and risks are fully understood. 


For a comprehensive analysis of your case and the highest quality legal guidance and criminal defense representation, contact Stechschulte Nell, Attorneys at Law, in Tampa at 813-280-1244. 

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