White collar investigations necessarily impact many different people. Federal and state white collar authorities use three different labels to categorize the individuals and companies they interact with: target, subject, and witness. The Department of Justice’s policy is to inform individuals where they fall on the spectrum—target, subject, or witness. The differences are incredibly important.
On one side of the spectrum is a target. An example of a target is the executive who orchestrated financial fraud, or the suspect who pulled the trigger. If you are a target, that means the government believes there is substantial evidence that you have committed a crime. Criminal charges are likely and a grand jury may have already been empaneled. A target needs to be advised about his or her Fifth Amendment rights against self-incrimination and will need to vigorously exercise those rights.
On the other side of the spectrum is a witness. Examples of a witness include the individual who lost their money, or the victim to the shooting. This person has knowledge about the crimes but isn’t directly involved in the criminal acts. A witness is typically asked to sit for interviews with government agents and/or testify before a grand jury.
In the middle is a subject. The subject can be thought of as the accountant who processed bad checks, or the person who was in the room when the trigger was pulled. This is the individual who has important information and whose conduct falls within the purview of the investigation. The government sees this person’s behavior as potentially suspicious, but the extent of their involvement is unknown. When representing a subject, counsel must carefully analyze and advise on any potential criminal liability. The goal is to keep the subject from moving into the target category and, ideally, move that person into a witness category.
These categories are not fixed. They fall on a spectrum and are fluid. Thus, it’s very important for individuals to know their rights and their options.
Matthew P. Massey is a Partner in the White Collar, Government Investigations, and Special Matters Group. He is a former Assistant U.S. Attorney with the U.S. Attorney’s Office for the District of Columbia and represents businesses and individuals in high stakes matters including federal criminal defense and white collar crimes.