Some questions from clients or issues in white collar criminal defense cases come up over and over. I’ll periodically post Resource Guides to cover those questions and issues. Reminder: this is not legal advice.
There are three categories of individuals in a federal grand jury investigation: (1) target; (2) subject; or (3) witness. The prosecutor will decide whether you are a target, subject or witness.
When you hire a white-collar defense lawyer, you will hear a lot about whether you are a target, subject or witness. That’s because your status in the investigation informs many of the decisions your lawyer will help you make during the process, such as whether to talk voluntarily with the government.
The Basic Definitions
A grand jury witness is someone who the government believes has helpful information for the investigation. The government does not believe the individual did anything wrong.
A grand jury subject is the gray area between a witness and a target. The United States Attorneys’ Manual defines a subject as “a person whose conduct is within the scope of the grand jury’s investigation.” It means that the government is not actively seeking your indictment but that the government may try to indict you in the future because you engaged in conduct connected to what the grand jury is investigating. Basically, the government has not made up its mind about you. You might be in trouble or you might not.
A grand jury target is someone who is likely to be indicted. According to the United States Attorney’s Manual, a target “is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.” This is the most serious category, and it means you are in serious trouble. The most likely outcome is that you will be indicted.
Does It Matter if I’m a Grand Jury Subject or a Grand Jury Target?
Yes, it does. The government rarely changes its mind about a grand jury target and decides that it will not indict the target after all. If you are a subject, however, there is a very real possibility that your lawyer can convince the government not to indict you. The prosecutor has doubts about your guilt and is not actively seeking to indict you.
How Do I Know If I’m a Grand Jury Target?
The government will tell you that you are the target of a grand jury investigation. The federal prosecutor will send you what is called a “target letter.” This is a letter that formally tells you of the grand jury investigation and that you are a target or a subject of that investigation.
The United States Attorneys’ Manual—which is not binding on anyone—says that “[i]t is the policy of the Department of Justice to advise a grand jury witness of his or her rights if such witness is a ‘target’ or ‘subject’ of a grand jury investigation.”
Basically, if you are a subject or a target, the government will send you a letter informing you that you have the right to take the Fifth Amendment if you are called to testify before the grand jury.
In addition, when your lawyer contacts the agent or the prosecutor at the beginning of the case, your lawyer will find out whether you are a target, subject or witness.
If you are representing yourself (which, by the way, you should not be), then you can ask the prosecutor whether you are a target, subject or witness.
Can I Move From a Grand Jury Subject to a Grand Jury Target?
Yes, you can move between categories. The most common scenario for movement between the categories is when a subject obstructs justice during the investigation. That subject will quickly become a target. For example, if you are subject of the grand jury but then the government finds out that you lied to a government agent during your interview or destroyed documents about the supposed crime, you will become a target.
Do I Need a Lawyer If I’m Only a Witness?
Yes, you absolutely do. Here are just a few reasons why you need a lawyer even if you are only a witness:
- A lawyer will talk to the prosecutor for you and ask the right questions to find out the status of the investigation.
- A lawyer will explain the grand jury process to you and answer your questions.
- A lawyer will help you decide whether to agree to a voluntary interview with the government and identify whether any of your conduct is potentially criminal.
- A lawyer will help you negotiate some form of immunity, which makes it difficult or impossible to prosecute you for any crimes you may have committed.
- A lawyer will advise you whether you need to take the Fifth Amendment for any of the questions that the government will ask you during the interview.
- A lawyer will prepare you for an interview with the government and help you avoid committing perjury.
- A lawyer will help make sure the government does not bully you into appearing for a voluntary interview when you should, in fact, decline to appear.
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