Investigations and Subpoenas

If you have come to the attention of a state or federal prosecutor during the course of an investigation you can fall into one of three categories: witness, subject or target.

Target

A target is someone who stands a 50 percent or more chance of being criminally charged. As a practical matter, once an individual has been branded a target, the prosecutor has decided that the individual is guilty. The prosecutor is simply looking for strong enough evidence to indict.

Witness

A witness is not under any suspicion, as yet, but simply has information of interest to a grand jury.

Subject

A subject is somewhere between a target and a witness. He or she has engaged in conduct that may look suspicious or unethical, but the prosecutor is not certain that a provable crime has been committed and wants to do more investigating in order to be sure.

Even though your status as a witness, subject or target may be important in guiding your strategy during a particular phase of an investigation, it is important to recognize your status can change at any stage of the investigation. Having the proper representation is critical in determining your criminal exposure, if any, in order to employ a strategy which will be most beneficial to the client. Never ignore any indication you may fall into any one of these categories of an investigation. Acting swiftly and with the assistance of an experienced lawyer can make a significant difference in how you are categorized by a prosecutor.

What should you do if law enforcement attempts to speak to you

Never, never, never speak to law enforcement about an investigation without speaking to a knowledgeable criminal defense lawyer. Although most people will feel uncomfortable and intimidated in the presence of law enforcement, it is important to know you have the right not to speak to any government agent and seek the advice of an attorney. Many state or federal agents may try to convince a person they should speak to them if they have nothing to hide. Even if you believe you have not done anything wrong, unless you are a criminal defense lawyer, you will not have enough information to determine if something you did could subject you to criminal prosecution. This is true not only because you may lack knowledge of the law, but also because you are unaware of the full scope of the investigation. Seemingly innocent conduct, when viewed by a prosecutor in combination with the actions of others, may violate the law. If you decide to speak to law enforcement, without the advice of a lawyer, you must be aware that anything you say to them can be used against you. In most cases, you have nothing to lose by postponing an interview, but you could unnecessarily subject yourself to criminal prosecution without the proper advice of a lawyer.