Federal criminal cases are complex matters, legally and logistically, and lengthy investigations by federal law enforcement and regulatory agencies typically precede them. Although the investigators make every effort to keep those investigations secret, they’re rarely successful because of their need to interview witnesses and obtain documentary and other types of information from third parties, none of whom have any legal obligation to keep the agents’ inquiries secret (with the exception of financial institutions).
If a person has any relationship to a federal criminal investigation, he or she will be either a witness, a subject, or a target. A “witness” is someone from whom the prosecutor intends to elicit testimony against a defendant during a court proceeding, such as a grand jury session, a hearing, or a trial. A “subject” is someone whose actions are within the scope of the investigation. A “target” is someone against whom the prosecutor already has substantial evidence linking him or her to a crime. Of course, as an investigation develops, a witness can become a subject or a target; a subject can become a target or a witness, and a target may become a witness or cause his or her involvement in the investigation to terminate completely.
The most common way that a person learns of his or her involvement in a criminal investigation is through other persons or entities whom the investigators or prosecutors have contacted during the court of the investigation. A prosecutor may subpoena a subject or target’s emails from an internet service provider, which then sends its customer (the subject or target) a letter providing that customer an opportunity to contest the subpoena. A federal investigator may interview a subject’s customer about his or her business practices or a target’s neighbor about his or her lifestyle, and those potential witnesses then tell the subject or target about the inquiry. In certain investigations in which the prosecutor isn’t concerned about the target’s willingness or ability to obstruct the investigation or flee from an eventual prosecution, the prosecutor will send a “target letter” to the target advising him or her that the Government is conducting a criminal investigation into the target’s conduct; that the Government intends to present the matter to a federal grand jury; and that the target may have his or her attorney contact the prosecutor before the grand jury meets in an effort to resolve the matter prior to a formal prosecution.
The most effective way for a witness to stay a witness, a subject to become a witness, or the target to become a witness or to be terminated from the investigation and eventual prosecution, is by his or her engaging the Government through an attorney before the prosecutor makes any formal charging decision, which in many instances because of the Department of Justice’s internal procedural policies, cannot be reversed by negotiation alone. An effective defense strategy during a pre-indictment investigation is the best way to win a case before the case even becomes a formal prosecution.