When prosecutors ask for an interviewSometimes prosecutors are uncertain about how to deal with an individual. This is especially true in dealing with subjects. The prosecutor does not want to grant immunity, because a later investigation may indicate that the person had significant culpability. To decide how to proceed, the prosecutor may invite you to be interviewed. Some criminal defense lawyers counsel never to submit to an interview without either:
- A formal grant of immunity.
- “Letter” immunity (that is nearly as comprehensive).
- The “Queen for a Day” Agreement.
- Plea Negotiation Immunity.
- Attorney Proffers.
“Queen for a Day” agreementsThis agreement (also known as a “proffer” agreement) is named after a long forgotten television show in which a member of the audience would be crowned queen and showered with gifts and service. The agreement provides very limited protection. It limits the government only to foregoing use of your statements in its direct case at trial. However, the government can use the statements to point it toward independent evidence of the defendant’s wrongdoing, for cross-examination, and, most disturbingly, to rebut any inconsistent position you take at trial. Some lower courts have held that the rebuttal provisions of the standard proffer agreement are coercive and refused to enforce them. However, most appellate courts have rejected that view, taking the approach that a proffer agreement is a binding agreement.
Sample “Queen for a Day” agreementA "Queen for a Day" agreement is made in the form of a letter from the prosecutor to your attorney. The letter may look something like the following example: This letter sets forth the full and complete terms of the agreement entered into between this office and your client, Richard Roe. It is agreed that, in exchange for the commitment of the government set forth below, your client will provide complete and truthful information in connection with an investigation into violations of environmental laws by Richard Roe and others during the period from 2003 to the present. In particular, this office and Richard Roe agree that:
- Richard Roe agrees to be fully debriefed concerning his knowledge of the offenses set forth above. The debriefing of Richard Roe will be conducted by this office and agents of the Federal Bureau of Investigation, and/or other law enforcement agencies, as the case may require. Any and all documents or other written material, and any physical evidence of whatever description, which are relevant to the government’s investigation and which are in the possession of Richard Roe or under his control, will be furnished to this office or to the debriefing agents. All information provided by Richard Roe shall be truthful, accurate, and complete.
- In any prosecution brought against Richard Roe by the office of the United States Attorney for the Western District of Pennsylvania, except in a prosecution for perjury or false statements, the government will not offer in evidence in its case-in-chief any statements made by Richard Roe pursuant to this agreement.
- The government may use information derived from said debriefing directly or indirectly for the purpose of obtaining leads to other evidence, which evidence may be used by the office against Richard Roe at any prosecution of Richard Roe by the office;
- The government may use Richard Roe’s statements and all evidence obtained directly or indirectly therefrom for the purpose of cross-examination, should Richard Roe testify at any future proceeding, or for the purpose of a rebuttal case against Richard Roe.
- The government may make any use whatsoever of any documents, written material, and physical evidence provided by Richard Roe pursuant to this agreement, including offering such evidence in it case-in-chief, provided that an evidentiary foundation other than Richard Roe’s production of such items can be established.