Tuesday, November 8, 2016

Proffer failed? Don't panic---you can still defend your client at trial

Your client's proffer was for naught, and now you're facing trial. The proffer letter from the government promised not to use your client's statements against him except to rebut any factual assertions made by him or on his behalf.

Do you dare go to trial? If you do, how vigorously can you defend your client without triggering the proffer waiver?

You won't get much guidance from the Tenth Circuit, but the Second Circuit recently issued a detailed opinion setting out some ground rules, and reversing a rap mogul's murder-for-hire conviction in the process.

In United States v. Rosemond, the Second Circuit held that the district court's interpretation of the defendant's proffer waiver "unduly restricted the permissible scope of his lawyer’s argument and questioning of witnesses, in violation of the Sixth Amendment."

The Second Circuit explained that the following acts do not trigger a proffer waiver:
  1. pleading not guilty;
  2. arguing generally that the Government has not met its burden of proof;
  3. arguing specifically that the Government has failed to prove particular elements of the crime, such as intent, knowledge, identity;
  4. cross-examining a witness in a manner to suggest that he was lying or mistaken or was not reporting an event accurately;
  5. cross-examining a police officer about discrepancies between his testimony and his earlier written report; and
  6. arguing that the Government failed to present corroborating evidence.
The bottom line? A dead proffer does not have to mean a dead defense. Read Rosemond if you find yourself in this predicament.
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