The Department of Justice (DOJ) Manual contains three labels for individuals in a criminal investigation: “target,” “subject,” and “witness.” Increasingly, federal prosecutors are opting to label likely guiltless parties as “subjects” rather than “witnesses” during criminal investigations. This can be problematic.
In “Call Your Next Witness,” Zach Terwilliger, Brittany Harwood, Reem Gerais, and Alex Rant explain some of the consequences that arise from increasingly designating individuals who are not suspected of criminal behavior as “subjects.” For example, defense attorneys are incentivized, and sometimes obligated, to take steps that lengthen investigations; prosecutors limit the information they might receive due to precautions a “subject” might take that a “witness” would not; and lower income individuals are harmed by the lack of a “witness” label since they may not be able to afford counsel for proffers and interviews.
The authors suggest two modest alterations to the current labeling process. First, they argue that the Justice Manual should clearly distinguish “witnesses” from “subjects” by stating “that ‘witnesses’ are (1) persons with information relevant to an investigation (2) who the government believes lack culpability or criminal exposure based on the lack of evidence against them.” Second, they believe that prosecutors should be “encouraged to more freely exercise their discretion in drawing lines between ‘witnesses’ and ‘subjects.’” These simple changes could limit costly burdens on those who are innocent.
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