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WHAT IS THE DIFFERENCE BETWEEN A FEDERAL TARGET, SUBJECT, AND WITNESS?
May 30, 2016
A federal criminal investigation is a virtual danger zone for anyone other than an experienced attorney or investigator. Even if you believe that you are innocent, it is important not to assume that the government sees the situation the same way. Further, if you did something wrong, it is unwise to think that you can finesse the situation or explain away the problem on your own.
All individuals coming into the orbit of the federal prosecutor and grand jury fall into one of three categories: witness, subject or target. It is crucial to understand your status in a federal investigation to make the right decisions.
• Witness: Being a witness in a case involving the FBI, Secret Service, IRS or other Federal Agency does not necessarily mean that you observed or saw a crime happen. You may have information that law enforcement believes might be relevant in a criminal investigation to help prove either the guilt or the innocence of another individual or business. Although you may only be a witness, it’s critical to recognize that if you speak to Federal law enforcement your words are not protected without a proffer agreement and should you make a misrepresentation, you can be charged with the crimes of Lying to a Federal Agent[1] and Obstruction of Justice, each of which is punishable by as much as five years in a Federal penitentiary
• Subject of an Investigation: The term “subject of an investigation” has a particular meaning within the United States Department of Justice (DOJ). According to the DOJ Handbook[2], a “subject” is: “a person whose conduct is within the scope of a Grand Jury’s investigation.” A subject is somewhere between a target and a witness. A subject has engaged in conduct that may look suspicious or unethical, but the prosecutor isn’t certain that a provable crime has been committed and wants to do more investigating in order to be sure.
• Target: The term “target of an investigation” is also specifically defined by the DOJ. A person is a target where the prosecutor or Grand Jury has substantial evidence linking him to the commission of a crime. Designation as a target provides a clear warning of a person’s criminal exposure.
Even though your status as a witness, subject or target may be important in guiding your strategy during a particular phase of a federal white collar crime investigation, the key thing to remember about these categories is that they are ultimately meaningless and offer you no protection. Why? Because even if you are currently a witness or subject, there is no guarantee that your status will remain unchanged. It is necessary, therefore, from the outset of a white collar crime investigation, to base any strategy on a realistic assessment of your potential criminal exposure after consulting with an experienced federal crime defense lawyer.
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