Is my client a target, subject or witness? In a federal investigation, this is the first question defense attorneys typically ask prosecutors on behalf of their individual and corporate clients. And with good reason—these designations have guided subpoenaed parties and their defense attorneys for decades. Recently, however, federal prosecutors have become increasingly unwilling to label likely-guiltless parties as “witnesses,” frequently opting instead for the vague and amorphous “subject” designation.

This approach often stunts the progress of investigations, complicates routine fact-gathering, dilutes the meaning of “subject” and creates inequities between subpoenaed individuals. To counter this trend, the Department of Justice (DOJ) Justice Manual—on which federal prosecutors rely—should be revised to clearly delineate a “witness” from a “subject,” and prosecutors should be encouraged to freely exercise their discretion in distinguishing between the two. 

Target-Subject-Witness Nomenclature