NCJ Number
113422
Journal
Trial Volume: 24 Issue: 9 Dated: (September 1988) Pages: 49-50
Date Published
1988
Length
2 pages
Annotation
The proffer process, a procedure whereby a potential defendant discloses testimony to a Federal prosecutor in anticipation of leniency, is unfair because it is secret and its outcome is decided solely at the discretion of the prosecutor.
Abstract
The proffer process usually begins for an individual with the receipt of a grand jury subpoena seeking testimony. If the recipient of the subpoena is called to testify as a witness before a grand jury, the defendant often declines and asserts the fifth amendment right to remain silent. Prosecutors may only compel testimony from one who asserts the fifth amendment privilege by granting statutory immunity. They are reluctant to do this because juries do not give full weight and consideration to the testimony of immunized witnesses. Most prosecutors prefer to grant nonstatutory or informal immunity to witnesses whose testimony might be helpful. But first, the prosecutor wants a preview of the testimony or proffer. Defense counsel should be aware that proffered testimony can be used directly or indirectly against the client. Thus, the proffer process violates due process because it offers immunity grants to obtain convictions. No similar process is available to the accused. 30 footnotes.