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When I'm watching a show like "Law & Order", I'm always curious if the following scenario is reality or just a handy plot device of television and fiction :

A discussion plays out between the police (or district attorney) with the accused. During this conversation, one side suspects that the other has something to offer and hints a deal could be worked out. At some point one of the two sides declares, "Off the record?" at which point, the other agrees, and the full details of the crime are openly revealed. Usually this turns into a plea agreement or in the case of the police, they ignore this lesser confession in order to go after the "big crime"

So my question is, fact or fiction? These magic words, "Off the record" seem to allow both sides to openly discuss anything imaginable without legal ramification. A clever invention of television drama or a real life tool of the police and justice system?

Oddthinking
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LaloInDublin
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    I've no idea about interrogations and the like, but there are some things where conversations are officially off the record, such as a sidebar during a court hearing (the two attorneys and the judge speak, and the conversation is not recorded or presented to the jurors). – Brian S Apr 25 '14 at 22:35
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    I think the technical term for this is a **proffer agreement**. – Nate Eldredge Apr 26 '14 at 00:56
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    Further to @Nate's comment: http://definitions.uslegal.com/p/proffer-agreement/ – Oddthinking Apr 26 '14 at 03:13
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    Perhaps to clarify a bit more, for example in the show a cop will say "Tell me off the record" and a crime might be discussed. But in reality it seems that cops or prosecutors would not risk such an oral agreement for a variety of reasons. On TV it works great because all kinds of things can be revealed in the few lines of dialog that follow – LaloInDublin Apr 26 '14 at 04:18
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    I'm not even I've ever seen this used by lawyers even in fiction. Do you have an example? – DJClayworth Apr 26 '14 at 22:07
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    Note, that there is huge difference in this aspects between common law system and continental civil law systems. Latter don't really allow for "deals" and it probably be criminal offence for the police or prosecution to withhold the information from the court. – vartec Jun 04 '14 at 09:18

1 Answers1

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"off the record" seems to mainly be a plot device. The original "off the record" statement would mean that the lawyer approach the bench and have some off the record talk, usually about something like a confession deal.

Off the Record Law & Legal Definition

Off the record refers to a conversation not being transcribed as part of the record of the proceedings. It may refer to a sidebar in court where the attorneys approach the bench to confer with the judge. Because the conversation is not to be heard by jurors and recorded, the conversation may be said to be off the record. It is not transcribed by the court reporter and made part of the trial record. - Uslegal.com

As far as I seen this happen in series my self, the "off the record" statement they give in there seems to be more like the Proffer agreement As said in one of the comments as well.

All tough this seems to be more of a written agreement then a stated agreement. Making me come to the conclusion that the "off record" used in series such as Law and Order are mainly plot devices

In the context of criminal law, a proffer agreement is a written agreement between federal prosecutors and individuals under criminal investigation which permit these individuals to give the government information about crimes with some assurances that they will be protected against prosecution.

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