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:
- pleading not guilty;
- arguing generally that the Government has not met its burden of proof;
- arguing specifically that the Government has failed to prove particular elements of the crime, such as intent, knowledge, identity;
- cross-examining a witness in a manner to suggest that he was lying or mistaken or was not reporting an event accurately;
- cross-examining a police officer about discrepancies between his testimony and his earlier written report; and
- arguing that the Government failed to present corroborating evidence.