The three categories in a grand jury investigation

The first thing that you and your criminal defense attorney must do when there is a grand jury investigation in which you have been or may be subpoenaed is to ascertain you status. The prosecutor’s estimation of your status will influence both your attorney’s approach to the investigation and your level of anxiety. In federal practice, the United States Attorneys’ Manual establishes three categories: target, subject and witness. A target is someone against whom the prosecutor intends to seek an indictment. That is, a “putative defendant.” Witnesses generally are those have no culpability and face little risk of indictment. Subjects fall in-between; they are “persons whose conduct is within the scope of the grand jury’s investigation.” This means that the investigation may or may not disclose wrongdoing on their part, and the prosecutor has not decided whether to seek charges against that person. Local prosecutors may not use the USAM definitions, but they categorize people in the same way:

  • Those they seek to indict.
  • Those who are innocent witnesses.
  • Those about whom they have not decided and who could end up as defendants or as witnesses, depending not only on the depth of their involvement, the extent to which they profited and the deliberateness of their actions, but also on whether and to what degree they cooperate with the investigation of the more culpable targets.

These definitions are not always precise. Many prosecutors see only targets and witnesses. Others would call nearly everyone a subject, at least until the morning they seek an indictment. Some will not say. Furthermore, a prosecutor’s statement about your status does not guarantee that it will not change.

Determining your status in the investigation

Your criminal defense attorney will try to ascertain your status by asking the prosecutor. Your defense attorney may also ask the agents to see whether they have a different opinion. The prosecutor has the final say, but the agents may know more about the investigation. Your attorney will seek as much information as the prosecutor is willing to disclose about the offenses and transactions under investigation, asking:

  • Where you fit in.
  • What the prosecutor thinks you can say as a cooperating witness.
  • Who the targets are.
  • How long before indictment will be sought.

Your attorney may also contact other attorneys who represent witnesses or subjects to see what they are willing to say about the investigation, what their clients are saying, and what the prosecutor and agents have been saying and asking about you. However, your attorney will proceed cautiously in doing these things because in some situations, such as organized crime, drug trafficking and violent crime investigations, revealing that the prosecution seeks your testimony may put you at risk of harm.