A “target” is an individual “as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.”. Since not every individual indicted by a grand jury is found guilty, whether the evidence necessarily must be “substantial” is debatable. Federal prosecutors perceive their targets as guilty throughout the course of their investigation, even though many individuals are acquitted by a federal grand jury.
A “subject” is defined as one “whose conduct is within the scope of the grand jury’s investigation,” but is not the target of investigation. Id. Additionally, an individual who the prosecution believes will assist them in establishing probable cause for an indictment is a “witness.”
Targets, subjects, and witnesses may be subpoenaed to appear before the grand jury. Subjects and witnesses should be particularly cautious when they testify, because their testimony could be more damaging than advantageous to their ends. Prosecutors make great effort to secure the target’s voluntary appearance, [and if] a voluntary appearance cannot be obtained, the target will in many cases be subpoenaed only after the grand jury and the [US] Attorney … have approved the subpoena.. Only once a witness “explicitly waives his or her privilege against self-incrimination, on the record before the grand jury, and is represented by counsel or voluntarily and knowingly appears without counsel and consents to full examination under oath,” may an individual be given the chance to testify. Importantly, the requirement that individuals be represented by counsel cannot be fulfilled by merely having counsel present during their testimony.
The Process of a Federal Grand Jury
Under the Federal Rules of Criminal Procedure, one of the 16 to 23 members of a grand jury is selected for the position of foreperson, and is given the tasks of signing indictments and overseeing oaths and affirmations. FRCrP 6(a)(1) and FRCrP 6(c). Another member of the jury is chosen as the deputy foreperson. FRCrP 6(c). Unless otherwise ordered by the court, the number of jurors that concur with the indictment is recorded and sealed from the public. Id. All involved in the administration of the matter, including government attorneys, jurors, transcribers, court reporters, and interpreters, are prohibited from revealing information about a grand jury session. Id. 6(e)(2)(B). Furthermore, only “attorneys for the government, the witness being questioned, interpreters when needed, and a court reporter or an operator of a recording device” are permitted to be in attendance during the grand jury session. FRCrP 6(d)(1). Even the target and his attorney cannot be present, unless the target is testifying. The government alone has the opportunity to present its evidence against the target, and this can include evidence, such as hearsay, that would not be admissible at a trial (USAM 9-11.232). If 12 or more grand jurors conclude that an indictment should be issued, the target is indicted. Id. 6(f).
The indictment is a clear and succinct written document, signed by a government attorney, which explains the facts that comprise the criminal charge. FRCrP 7(c)(1). Each count of the indictment must offer the applicable statute for the offense, but it may claim that the means “by which the defendant committed the offense are unknown.” Id. If the citation for the statute is absent or cited incorrectly, the indictment can still stand, unless the accused was somehow deceived or prejudiced. Id. 7(c)(3). Before the accused is taken into custody, the indictment is usually sealed. FRCrP 6(e)(4).
The target is informed of the indictment and becomes the “defendant” after the US Attorney and a federal agent see the Federal Magistrate Judge and are issued an arrest warrant.