Target, Subject and Witness: Three Different Letters
Federal prosecutors sort the people around an investigation into three categories, and the definitions come from an internal manual rather than from any statute or rule. The labels are informative, revocable, and unenforceable, all at once.
The rule in short
Department of Justice policy defines a target as a person the prosecutor has substantial evidence linking to the commission of an offense and who is a putative defendant, a subject as a person whose conduct is within the scope of the grand jury's investigation, and a witness as everyone else. The definitions appear in the Justice Manual, create no rights, and can change as an investigation develops. What a designation signals is the government's present view, not a commitment.
Federal prosecutors sort the people around an investigation into three categories, and counsel who has seen a few of these letters will recognize all three from their opening lines. The categories are target, subject and witness. Their definitions come from the Justice Manual, an internal statement of Department of Justice policy, and not from any statute, rule of procedure or constitutional provision. That origin explains both their usefulness and their limits.
What each label means
A target is defined as a person as to whom the prosecutor or the grand jury has substantial evidence linking that person to the commission of a crime, and who in the prosecutor's judgment is a putative defendant. Both halves matter. Substantial evidence describes the state of proof; putative defendant describes the intention. A person can attract one without the other, and the definition asks for both.
A subject is defined more loosely as a person whose conduct is within the scope of the grand jury's investigation. That formulation covers an enormous range. A bookkeeper whose entries are being examined is a subject. So is a person the government suspects of directing the scheme but cannot yet prove anything against. The label is genuinely uninformative on its own, which is why counsel who receives it usually asks a follow-up question.
A witness is everyone else: a person believed to have information and no apparent exposure. The category is the largest and the least stable, because a witness whose answers contradict documentary proof can become a subject within an afternoon.
Two features of the scheme are easy to miss. Nothing requires a prosecutor to assign a designation at all, and many investigations proceed for long periods with no label communicated to anyone. And the categories are not exhaustive of the government's thinking: a person may be regarded as an unindicted participant, a cooperating source or a potential defendant in another district, and none of those states of affairs has a corresponding letter.
| Designation | Policy definition | What it signals | What it does not decide |
|---|---|---|---|
| Target | Substantial evidence linking the person to an offense; a putative defendant | The government presently expects to charge | Whether a charge issues, or when |
| Subject | Conduct within the scope of the grand jury's investigation | Attention, without a stated conclusion | Whether exposure is serious or incidental |
| Witness | A person with information and no apparent exposure | The government wants an account | Whether the account will change the label |
| Any designation | Internal policy, expressly creating no rights | The government's present view | Anything enforceable by the person labeled |
How a designation is communicated
The most formal vehicle is a target letter, which typically identifies the investigating office, states that the recipient is a target, identifies the general subject matter and sometimes the statutes under consideration, advises of the right to counsel, and invites the recipient or counsel to make contact. Some letters extend an opportunity to appear before the grand jury; some do not. Practice varies by district and by the individual prosecutor.
Less formal routes are more common. A prosecutor may state a designation on a telephone call with counsel, or note it in a cover letter accompanying a subpoena. Department policy contemplates advising a target who is subpoenaed to testify, and provides for an advice-of-rights notice attached to the subpoena. None of that is required by rule, and the absence of any communication means only that nothing has been communicated.
Timing is part of the signal. A target letter that arrives with a proposed meeting date and a statutory list attached usually reflects a decision already substantially made. One that arrives with no proposal, in a matter where custodial records have only recently been demanded, may reflect a decision to preserve options. Neither reading is reliable on its own, and both are improved by asking the prosecutor directly what the letter is meant to accomplish.
The labels describe the prosecutor's assessment. Grand jurors are not consulted about them and are not told which category a witness occupies. A person described as a target has been assessed by a lawyer, not voted on by anyone, and the distinction matters when weighing how settled the government's position actually is.
What changes once a label is known
Knowing the designation reorganizes the practical choices in front of counsel. A witness with no exposure may simply comply. A subject faces a question about whether an interview or a written submission can move the assessment, and about the risk that either supplies proof. A target faces a narrower set of options and a different calculation about whether to seek any contact at all, since a false statement in a voluntary interview is itself an offense.
Policy permits a target who asks to testify to be heard, and it also permits the government to decline where the appearance would be inconsistent with the interests of the investigation. A target who does testify is ordinarily required to sign a waiver of the privilege against self-incrimination. The competing considerations in that decision are the subject of the choice between testifying and invoking the privilege, and they do not resolve the same way twice.
Where the assessment cannot be changed by argument, the remaining route is often compulsion with protection, which is a different negotiation entirely. What such an order does and does not cover is set out in immunity and what it actually buys. It is worth noting that a target letter arriving late in an investigation often signals that a limitation period is a live consideration, a topic addressed in the period the government has to bring a charge.
The limits of relying on a label
Three limits are worth stating plainly. The designations create no rights: the Justice Manual says so in terms, and courts have declined to dismiss indictments because a person was not notified of target status or was mislabeled. They are revocable in both directions, and nothing obliges the government to announce a change. And they are office-specific, so a person described as a witness by one United States Attorney's office has learned nothing about the view taken by another district or by a regulator running a parallel matter.
What the labels are good for is planning. They indicate where the government believes it stands, they identify who is likely to be asked for what, and they tell counsel whether the immediate question is about producing records or about exposure. Treated as information rather than as a commitment, they are among the more useful signals available before a charge exists.
One further caution about conduct. People who learn they share a designation with others frequently want to compare accounts, and the impulse is understandable. It is also the origin of a substantial share of obstruction and witness tampering charges, which reach efforts to influence testimony regardless of whether the underlying investigation produces anything. Contact among people in overlapping categories is ordinarily handled through counsel and documented, precisely because the alternative creates a second case out of nothing.
A designation also affects what a person can usefully be told by an employer or an insurer. Companies conducting internal reviews often learn of an employee's status before the employee does, and the terms on which counsel for the company speaks to an employee are governed by warnings about whom that lawyer represents. A person who has been designated should assume that the company's interests and the individual's have already begun to diverge.
Points to carry away
- The three designations come from internal Department of Justice policy, not from a statute, a rule, or the Constitution.
- A target is a person against whom the prosecutor has substantial evidence and who is a putative defendant.
- A subject is a person whose conduct falls within the scope of the investigation, a category that can mean very little or a great deal.
- Policy calls for advising a grand jury witness of the right to refuse to answer and of the possible use of any answer.
- A designation may change in either direction as evidence develops, and no version of it is enforceable by the person labeled.
- A target who asks to testify may be permitted to do so, subject to a signed waiver of the privilege.
Questions readers ask
Does receiving a target letter mean charges are certain?
No. The designation records the prosecutor's present assessment that substantial evidence links the person to an offense and that the person is a putative defendant. Investigations end without charges for many reasons: proof weakens, a limitation period intervenes, a cooperating witness becomes unusable, or a supervisory review concludes the case does not meet charging standards. The letter also has no fixed shelf life, and people have carried the designation for extended periods without a charge issuing. It is a serious signal about exposure and not a prediction of an outcome.
Can a person ask the government which label applies?
Counsel may ask, and prosecutors often answer, because a clear answer can move a matter along. The response carries no guarantee. Department policy contemplates notifying a target in appropriate circumstances, but it also states that its provisions create no enforceable rights, and a person described as a subject one month may be described differently the next. What an answer does supply is a basis for deciding whether to seek an interview, to submit written material, or to decline contact entirely, each of which carries different consequences.
What does the advice of rights given to a grand jury witness cover?
Department policy provides for advising a witness that the grand jury is conducting an investigation of possible violations of federal criminal law, that the witness may refuse to answer any question if a truthful answer would tend to incriminate, that anything said may be used against the witness, and that the witness may step outside the room to consult counsel. The advice is a policy practice rather than a constitutional requirement, and courts have declined to treat its omission as a ground for dismissing an indictment.
Sources
- Justice Manual, Title 9-11.000 — Grand JuryContains the definitions of target and subject, the advice of rights provision, and the policy on target notification.
- Justice Manual, Title 9-27.000 — Principles of Federal ProsecutionStates the charging standards a prosecutor applies in deciding whether a subject becomes a defendant.
- Federal Rule of Criminal Procedure 6 — The Grand JuryGoverns who may be present during a grand jury session and the secrecy of its proceedings.
- Federal Rule of Criminal Procedure 17 — SubpoenaSupplies the process by which a person in any of the three categories is summoned.
- 18 U.S.C. § 6002 — Immunity generallySets the compulsion mechanism used when a witness declines to answer on self-incrimination grounds.
- 18 U.S.C. § 1512 — Tampering with a witness, victim, or an informantDefines the offenses that make contact between people in different categories a hazardous undertaking.
Premier Defense Law is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Grand Jury & Charging
The Act of Production and Its Own Privilege
A subpoena for documents can raise a Fifth Amendment problem even when nothing written in the documents is protected. Producing items implicitly asserts that they exist, that they are in the producer's control, and that they answer the description used. Where those assertions are incriminating and not already known, the act is testimonial. The foregone conclusion doctrine removes the protection where the government can independently establish what the production would concede.
The Indictment and the Elements It Must Allege
An indictment must be a plain, concise and definite written statement of the essential facts constituting the offense charged, signed by an attorney for the government and citing the provision alleged to have been violated. It gives the defendant notice sufficient to prepare a defense and allows a later plea of double jeopardy. A charge omitting an element is defective. Because only a grand jury may alter what it charged, proof that broadens the charge presents a constructive amendment problem.
Testifying or Invoking the Privilege
The privilege against self-incrimination applies in the grand jury room, but it is asserted answer by answer rather than announced at the door. A blanket refusal is generally rejected, because the privilege reaches answers that would tend to incriminate rather than attendance itself. Counsel is excluded from the room, though a witness may leave to consult. A valid refusal is met either by dropping the subject or by a compulsion order backed by immunity.