Litigation
Cal. Litig. VOLUME 37, ISSUE 3, DECEMBER 2024
Content
- Chair's Column
- Climbing the Mountain Again
- Editor's Foreword: New Leadership Arrives
- How Joining the California Supreme Court Historical Society Can Benefit You
- Inside This Issue
- Over Ruled: the Human Toll of Too Much Law
- PAST SECTION CHAIRS & EDITORS-IN-CHIEF
- Postscript: Updating California's International Arbitration Code
- Presidential Immunity: Precedential Impunity?
- Reconciling the Duty of Zealous Advocacy and Civility
- Remember Korematsu?
- SECTION OFFICERS & EDITORIAL BOARD
- Selected Evidence Issues With Depositions of the Person Most Qualified/Knowledgeable In California and Federal Courts In the Ninth Circuit
- Table of Contents
- The California Supreme Court In Judicial Year 2024: the C.J. Guerrero Era Is Underway
- Who Owns This Sentence?: a History of Copyrights and Wrongs
- Working: Conversations With Essential Workers
- Attorney Proffers Post-menendez: How To Make the Risk Worth the Reward
ATTORNEY PROFFERS POST-MENENDEZ: HOW TO MAKE THE RISK WORTH THE REWARD
Written by Randy Grossman, Richard Hartunian, Misa Eiritz, and Russell Potter
THE "REWARDS" ASSOCIATED WITH ATTORNEY PROFFERS
Defense attorney "proffers" and prosecutor "reverse proffers" — informal and often hypothetical discussions about the facts and law — are common and longstanding federal practices that bring focus to complex investigations and contribute to just results. Attorney proffers are especially important for any criminal defense lawyer who wishes to shape the trajectory of an investigation or prosecution. They can be useful as hypothetical previews of the defense case while insulating clients from cross examination and can cause prosecutors to rethink the wisdom of bringing certain charges. Such proffers can also promote candid communications and enhance trust between the parties, laying the groundwork for a range of favorable outcomes for a client in the crosshairs of a federal investigation, including: a beneficial cooperation agreement and credit under the United States Sentencing Guidelines; less serious charges; or perhaps a declination of charges altogether. However, as the recent high profile case of U.S. v. Menendez (S.D.N.Y. Sept. 21, 2023, 23-Cr-490 (SHS)) demonstrates, attorney proffers carry significant risks which must be carefully weighed.