It is very common that after a criminal defendant is arrested, police want information from that person. They will tell the defendant that they can help themselves out by talking. Sometimes this will include a specific promise of what will happen if they cooperate, but often defendants are just told that they’re helping themselves out. And many defendants do cooperate. But it often doesn’t go how they think it will go.
Sometimes, these statements by police are nothing more than an interview tactic. They know full well that what a defendant says will be used against them, nothing more. And since police are allowed to lie during an interrogation, this is permissible. Many defendants believe that they are helping themselves out when they talk to police, but rather they are just digging themselves deeper in a hold.
Other times, the police may intend on crediting a defendant for their cooperation, but they are making promises or inducements they don’t have the authority to make. Prosecutors are not bound by the statements police make and they often have very different views of the significance of the statements or the appropriate punishment of the offense.
It can be very challenging for a criminal defendant to figure out whether law enforcement genuinely wants their help and will credit them for their information, or if this is just a ploy to have them further incriminate themselves. That’s where an attorney can make a big difference.
Criminal defense attorneys can often provide that missing insight to defendants. They know how prosecutors have acted previously, how similarly situated defendants have been treated in the past, and often how valuable that information can be. Furthermore, unlike defendants themselves, criminal defense attorneys can negotiate on behalf of their clients to make sure that they clients are given credit for cooperation.
One way an attorney might arrange for cooperation is to set up a proffer. A proffer is a sit-down meeting with the defendant and law enforcements (usually including the prosecutor). The information shared by a criminal defendant in a proffer cannot be used against that defendant unless they testifying differently in another proceeding. This protection allows a prosecutor to learn what information a defendant has without the defendant exposing himself to additional liability.
Another way an attorney can assist a cooperating defendant is to effectively negotiate with the prosecution. Often a cooperating defendant’s interaction with law enforcement is with the police, not the prosecutor, but the prosecutor is the one who holds the fate of the defendant in their hands. Criminal defense attorneys deal with prosecutors on a daily basis, and good ones know what cases are worth and how to get the best outcomes for their clients.
Lastly, a criminal defense attorney is needed to ensure that even if a prosecutor isn’t adequately crediting cooperation, the judge understands that nature and extent of the defendant’s cooperation. Criminal defendants very rarely adequately advocate for themselves but an attorney has more credibility with the court and can explain the relevant facts.
Cooperating with law enforcement without the services of an attorney is highly risky and often ends badly. If you or someone you know wants to assist law enforcement in exchange for leniency, make sure to hire a strong attorney to guide you through the process.