A federal criminal investigation can touch many different people. Not everyone that an agent interviews is suspected of wrongdoing. Not everyone who testifies before a grand jury is ultimately indicted. But, when a corporate executive receives a visit from agents or a subpoena to testify before the grand jury, how does she know where she stands? Sometimes, it’s enough simply to ask.
The prosecutor will usually offer one of three responses, saying that the individual is either (1) a witness, (2) a subject, or (3) a target. How that executive is classified will often dictate how she and her lawyer interact with prosecutors and agents.
At one end of the spectrum is a “witness.” A witness may have information that the government considers important to its investigation. She need not have actually seen or observed a crime. Typically, prosecutors do not believe a witness has committed any crime. Because the risk of criminal liability is low, a witness may often choose to cooperate with investigators and may be willing to testify before the grand jury or sit for an interview with agents.
At the opposite end of the spectrum is someone classified as a “target.” When a prosecutor deems someone a target, it means the government believes there’s substantial evidence that person has committed a crime. A person is usually named as a target only when prosecutors are ready to bring criminal charges. Thus, someone identified as a target is much more likely to take an adversarial posture toward investigators, asserting their Fifth Amendment right against self-incrimination and refusing to cooperate.
A “subject” sits between a witness and a target. To a federal prosecutor, a subject is a person whose conduct is within the scope of a grand jury’s investigation. That typically means that the government considers the subject’s behavior suspicious, and there is some risk that the subject has engaged in illegal activity.
It’s important to remember that these classifications are fluid; they can change at any time and they are not binding on the government. The classification represents nothing more than the government’s view of a particular person at that particular moment based on the information and evidence available to it.
Prosecutors are not required by any law to tell individuals where they fit within the investigation, but DOJ policy does require that a prosecutor inform a subject or a target of their rights if called to testify before the grand jury. If an individual is a target of the grand jury investigation, prosecutors may inform that person of her status through a “target letter,” and give that person the opportunity to testify before the grand jury before seeking an indictment.
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