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Are you a Witness, Subject, or Target? 8 KEY TAKEAWAYS
8 key things to remember about becoming a witness, subject, person of interest, or target in a federal criminal investigation.
In a perfect world, most people would prefer none of the above.
But when the federal government believes someone has information valuable to a federal investigation, that person does not get to choose.
What does it mean to be a witness, subject, or target?
Witnesses typically have information that the government considers important to an investigation. They are not facing criminal exposure directly at the moment (although there are never guarantees). Witnesses can help the government fill in the factual picture and the chronology of events. They often sit for interviews with federal agents and testify to a grand jury.
Subjects sit somewhere between a witness and a target. The DOJ Handbook defines a subject as “a person whose conduct is within the scope of a Grand Jury’s investigation.” A subject’s role or conduct appears suspicious, and prosecutors need more evidence before deciding whether to charge. They are still investigating. According to the DOJ Handbook, subjects should be warned before testifying to a grand jury and advised of their Fifth Amendment right against self-incrimination.
Targets are those who prosecutors seek to charge with a crime. A grand jury is considering the evidence. The DOJ Handbook states that “a person is a target where the prosecutor or Grand Jury has substantial evidence linking him to the commission of a crime.”
Targets may receive a “target letter” from federal prosecutors, putting them on notice that they are under investigation for violations of federal law. Specific language in a target letter often reads:
“You are advised that you are a target of the Grand Jury’s investigation. You may refuse to answer any question if a truthful answer to the question would tend to incriminate you.”
According to the DOJ Handbook, “targets” must receive this warning about their Fifth Amendment rights before testifying to a grand jury.
Legal practitioners consider target letters mainly as a way to encourage unrepresented targets to retain counsel and begin plea or cooperation discussions. For the most part, prosecutors do not expect targets to testify to a grand jury even if subpoenaed.
Sometimes the target is a business and not an individual officer or employee. Generally, an officer or employee of an organization that is a target is not automatically considered a target even if such officer’s or employee’s conduct contributed to the commission of the crime by the target organization. Even so, it is best for company officers and employees to proceed with utmost caution and under the guidance of counsel when their companies are the targets of a federal criminal probe.
What is a Person of Interest?
Somewhere along the spectrum, from witnesses to subjects and targets, another category of people may become involved in a federal criminal investigation. We often hear of a “person of interest” when law enforcement is investigating a crime.
The FBI and other federal law enforcement agencies use the term “person of interest” to describe someone law enforcement wants to talk to regarding an ongoing criminal investigation. Unlike subjects or targets, a person of interest has no defined meaning in The DOJ Handbook. It often means that law enforcement believes that the “person of interest” was involved in a crime somehow, but they do not have enough information to charge them with a crime.
Persons of interest can be anyone who might have information pertinent to a crime, including information that could lead to a suspect. It happens that persons of interest sometimes become suspects themselves. Other times, a person of interest needs protection from police because they have certain types of information.
*Pro-Tip: Should any federal law enforcement agent reach out for a statement or “to answer some questions,” the most prudent thing to do is to seek advice and counsel first. Our team at Prison Professors, an Earning Freedom company, is experienced in these matters and helps witnesses, subjects, targets, and persons of interest locate and vet appropriate criminal counsel and mitigation consultants.
8 KEY REMINDERS WHEN DEALING WITH FEDERAL INVESTIGATORS
- Remember that witness, subject, target, or person of interest are just labels that can change at any time. They are not binding on the government. Nor do prosecutors do not have to tell people where they fit within their investigation.
- Be proactive. Protect yourself. If it helps with decision-making, assume the worst-case scenario and remain silent before talking to a lawyer. See point 1: The labels are often meaningless and do not offer people any protection.
- Dealing with a federal investigator from the FBI, IRS, Secret Service, or other federal agencies is serious business. Making a misrepresentation or mistake when speaking to federal law enforcement can be charged as a crime. Obstruction of justice and lying to a federal agency are crimes carrying up to 5 years in prison.
- Concerns about sending the wrong message or appearing guilty often dissuade people from bringing counsel to any interview or meeting with the government. This is unwise. See point 3. Having counsel is not an admission of guilt!
- Make an honest and realistic assessment of the situation. Conduct that may have seemed perfectly acceptable in the past the government may now consider wrongful. Do not assume that law enforcement sees a situation the same way as you do. Talk in confidence to experienced counsel and mitigation consultants to devise a strategy for the best possible outcome.
- The safest course of action when first approached by federal agents is to be polite, tell the agents that you want to be helpful and cooperate and that you need to consult your lawyers. During impromptu talks with federal agents, people often deny guilt or involvement but admit to particular conduct without realizing the import. If you admit to the conduct, you may be admitting to a crime without realizing it.
- Never be intimidated or concerned about appearing to make matters more difficult or uncooperative for asking to speak to counsel first. The stakes are too high to worry about that.
- Remember that anything you say can and likely will be used against you in a subsequent criminal proceeding. If you are arrested, you will not have the ability to later assert that you would not have spoken to law enforcement if you knew you could have been charged.
CONCLUSION
Dealing with federal investigators from the FBI, IRS, Secret Service, or other federal agencies is serious business. Whether labeled a witness, subject, person of interest, or target, someone making any misrepresentation or mistake when speaking to federal law enforcement can be charged with obstruction of justice or lying to a federal agent. Criminal penalties for obstruction of justice or lying to a federal agent include up to 5 years in prison.
In all cases, proceed carefully by talking to experienced counsel and consultants as early as possible during the course of a federal criminal investigation.
