At the outset of any investigation, counsel will want to know if the client is
a witness, a subject or a target of the investigation. And counsel will
usually receive offer one of three responses, identifying the client as one
of the three. How the client is classified will typically dictate how the client
and counsel interact with prosecutors and investigating agents.
First, the “witness.” A witness is a person who may have information that
the government considers important to its investigation. It does not mean
that a crime was actually seen or witnessed and typically a prosecutor (or
the investigating agents) does not believe a witness has committed any
crime. Risk of criminal exposure is usually very low, which allows the
client and counsel to make a decision to cooperate. The cooperation is
typically through an interview and/or testifying before the grand jury.
Now, at the opposite end is someone classified as a “target.” When a
client is identified as a target, it means the government believes there is
substantial evidence that the client has committed a crime. When
identified as a target, the client will most likely face criminal charges. So
when the client is identified as a target, a more adversarial approach will
be taken, which includes asserting the Fifth Amendment right against self-
incrimination and outright refusal to cooperate.
In the middle of that spectrum is the client identified as a “subject.” The
prosecutor and the investigating agents believe that the “subject” is a
person whose conduct is within the scope of a criminal investigation.
What that means is that the government considers the client’s behavior
suspicious (which means that there is some risk that the government
believes that the client has engaged in illegal activity).
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