The Champion

September/October 2006 , Page 18 

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An Ironic Corollary to the Proffer Problem: Dead-to-Rights is Better Off

By Lisa A. Matewson

Articles in The Champion by Jon May (this issue) and Barry Tarlow (March 2005) make clear one reason that so much angst attends the decision of whether to proffer: the standard proffer agreement is a waiver of rights. Given that, defense lawyers who are convinced that their clients should proffer should always ask themselves, “Is it better to go in ‘bare’ rather than sign a letter agreeing to the waiver?”1  

The answer depends, of course, on what protections your client has absent the waiver. And that is why clients who have no hope of escaping prosecution may actually be better off — for proffer purposes — than those trying to proffer their way into immunity or declination. When your client’s statements are made in the course of plea discussions, Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(f) will render the statements inadmissible — unless you waive the rules’ protections by signing a proffer letter. Some persuasive case law establishes that proffers given i

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