Analysis of DOJ Victims' Rights Policy and Grand Jury Target Definition

92 CASSELL ET AL. [Vol. 104 of court hearings and to attend those hearings.'*’ So it is instructive to notice that the Justice Department policy is to extend certain rights to suspected criminals during certain points in the investigative process. That policy might provide guidance on when crime victims’ rights would attach. Of particular interest here is the Department’s policy for grand jury subpoenas issued to a “target” of a criminal investigation. When such a target is subpoenaed to testify before a grand jury, the Department of Justice will advise that target of his rights, such as the right to refuse to answer any question that might be incriminating.'*® The Department of Justice defines a “target” of a criminal investigation as “a person 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.”!*” If the Department’s investigation has coalesced sufficiently so that it can provide notice of rights to putative defendants, it should likewise be in a position to provide notice of rights to that defendant’s victims. Combining the Department’s definition of “target” with the CVRA’s coverage and definition-of-victim provisions produces a formulation whereby CVRA rights attach in (at least) the following circumstances: CVRA rights attach when an officer or employee of the Department of Justice or any other department or agency of the United States engaged in the detection, investigation, or prosecution of crime has substantial evidence that an identifiable person has been directly and proximately harmed as a result of the commission of a federal offense or an offense in the District of Columbia, and in the judgment of the officer or employee, that person is a putative victim of that offense. This formulation borrows from the CVRA’s coverage provision!”° to define the relevant universe of substantial evidence as that in the possession of the Justice Department or other federal agencies. For instance, if state law enforcement officers are investigating a bank robbery, the fact that the robbery might also be prosecuted federally'*! does not make the teller at the bank a federal “victim” of the crime until evidence regarding the crime comes into the possession of a federal agency. The formulation also tracks the CVRA’s definition of “victim” in limiting the universe of potential 187 See, e.g., Cassell, supra note 15, at 1376-85 (describing the rationale underpinning state victims’ rights statutes). 188 CRIMINAL RESOURCE MANUAL, supra note 87, § 9-11.15]. 189 Tq. 190 18 U.S.C. § 3771(e) (2012). 191 Td. § 2113. HOUSE_OVERSIGHT_014071