Every day we are bombarded with news about the ever-expanding investigation into the President and the alleged Russian connection to his staff. The news media has been filled with headlines and postings about people who are labeled a “person of interest,” a “subject,” a “target” or a “witness”. Do these terms have specific meanings to federal law enforcement? Yes and no. In the federal system, the term “person of interest” is not officially used. It’s use became widespread by some in law enforcement and the media back in 1996 during the Olympic Park bombing in Atlanta when it was announced that a security guard was a person of interest in the bombing. It euphemistically means that someone has suspicions about the person but not sufficient evidence. There are, however, very specific Department of Justice definitions for a target, subject or witness of an investigation.
A target is someone that the government has substantial evidence linking him or her to criminal activity and is close to presenting that evidence to a grand jury for potential charges (or a judge for an arrest warrant on a complaint). In criminal cases, the U.S. Attorney’s Office may send a person what is known as a “Target Letter”. The letter simply states that the person is a target of a federal criminal investigation and urges the target to obtain counsel and to meet with the prosecutors and agents on the investigation. A target of an investigation absolutely needs experienced criminal defense counsel representing her.
The technical definition of a subject is: a person whose conduct is within the scope of the grand jury’s investigation. A subject of an investigation is someone that the prosecutor and agents believe to be involved in criminal activity but do not yet have substantial evidence against. Often, law enforcement wants to interview a subject of an investigation, either informally or before the grand jury, in an effort to obtain sufficient evidence against the person. Being the subject of an investigation is a more nebulous category, and one that requires the advice and representation of experienced criminal defense counsel. Both targets and subjects have a right to assert the Fifth Amendment right to remain silent and refuse to testify without a grant of immunity.
The reason a subject of an investigation should immediately consult experienced counsel is that agents often attempt to interview the person while serving a grand jury subpoena to appear and testify and/or produce documents. The agents will typically be polite and friendly, offering to talk about the matter with the person to gather facts about their investigation. They often go to the person’s home or office early in the morning or later in the evening in an attempt to catch the person off-guard. Often the person talks because they don’t want the agents to think that they have anything to hide or that they are involved in any way. Since the person is not “in custody,” the agents do not have to warn the person of their right to remain silent and to consult an attorney if they desire.
A witness is someone that the government has no reason to believe has any criminal exposure and simply has relevant information about an ongoing investigation. A witness usually provides a statement either during a field interview or at the U.S. Attorney’s Office. A witness may also be called to testify before the grand jury. It is often advisable for a witness to be represented by counsel as well. A witness can be charged with lying before the grand jury or to a federal agent.
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