In TV crime dramas there are often scenes where a person accused of a crime talks with prosecutors to get a favorable deal.
These programs don’t usually reflect reality, but it is true that sometimes it is in the best interest of a person accused of a crime to cooperate with prosecutors. What is a cooperating witness? How do witnesses cooperate? What are proffer agreements?
What is a cooperating witness?
A cooperating witness is a witness who testifies for the government in order to help them prosecute a criminal case.
It is not the same as being a confidential informant. The difference is the identity of a confidential informant is never revealed to be the accused where the identity of a cooperating witness is disclosed.
In criminal law, witnesses may, on occasion cooperate with government prosecutors. They normally do so for one reason. That one reason is to get a lighter sentence for the crimes that they themselves have committed. In essence, they agree to give the prosecuting attorney something like information and/or their sworn testimony against others and in return the prosecutor gives some favoritism.
A person usually cooperates with police or prosecutors to stay out of jail or reduce their sentence. On the other hand, busy prosecutors all recognize the importance of prosecuting the most serious offenders. Often times prosecuting the most serious offenders requires prosecuting a lower level person in a criminal network. This is where cooperating witnesses come in handy.
How do witnesses cooperate with prosecutors?
A witness becomes a cooperating witness when they agree that it will be in their best interest to talk to prosecutors. This is a personal decision, but it’s a decision that’s often made after a person receives advice from their criminal defense attorney. A criminal defense attorney will explain the legal aspects of the decision, such as the benefits of cooperating in terms of the possible range of punishments for not cooperating.
Although a person accused of a crime can offer to cooperate, the prosecutor makes the final decision on if they will accept the cooperation. They don’t have to. They might not if they do not think the cooperating witness is not trustworthy. They might also refuse if they do not think the cooperating witness has valuable information to offer that could be used to prosecute a more serious offender.
If the prosecutor agrees to accept an accused person’s proffer, or offer of information, the next step is to make the promise formal. This is accomplished by a written contract.
What is a proffer agreement?
The written contract between accused and prosecutor is called a proffer agreement. These agreements usually have a common set of terms. They can include:
- A guarantee that the accused will tell the truth at the meeting and not be deceptive. In return the government will agree not use any statements against them at the future trial.
- A guarantee that the accused provides a detailed explanation of the criminal activity that they engaged in. The government in return agrees not to prosecute them based on the information provided.
As is often said the purpose of a proffer is usually to get the “bigger fish” or a more important criminal target. For example, a proffer agreement might be negotiated to get testimony from a witness to implicate a powerful drug supplier. The witness in this scenario might be a low-level dealer. Prosecutors see more value for society in prosecuting the supplier than the dealer.
Before you make any decision to talk with a prosecutor, you should contact an experienced criminal defense attorney to assist you. Your attorney will help you navigate these complicated and life-altering negotiations.
IF YOU OR A LOVED ONE NEED CRIMINAL LAW ADVICE, AND YOU NEED AN EXPERIENCED CRIMINAL DEFENSE LAWYER WORKING ON YOUR SIDE TO PROTECT YOUR RIGHTS, PLEASE CONTACT CRIMINAL DEFENSE ATTORNEY WILLIAM J. BARABINO.
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