Legal analysis of DOJ grand jury subpoena policy and CVRA victim rights applied to Epstein case

Page 23 of 31 104 J. Crim. L. & Criminology 59, *92 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. !8° 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." 18° 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 1°! 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 [*93] victims to those who have been "directly and proximately harmed." !°? Finally, the formulation requires some federal officer or employee to evaluate the evidence and reach the conclusion that a federal offense has been committed that harmed the person in question. This determination responds to the observation by the District Court for the Eastern District of New York that the CVRA "cannot be read to include the victims of uncharged crimes that the government has not even contemplated." 193 At the same time, such a formulation obviously does not require the filing of formal criminal charges, or even the preparation of formal criminal charges. Instead, all that is required is for the Department to recognize that a person is a putative victim of a federal offense, just as all that is required for the mailing of a target letter to a subpoenaed suspected criminal, is recognition that he is a putative defendant in a federal case. B. APPLYING THE TEST TO THE EPSTEIN CASE To illustrate how the test would operate, it is useful to examine the facts of the Epstein case. Applying the proposed test to that case produces straightforward answers, which suggests that the test would be workable in practice. From 2001 to 2007, Jeffrey Epstein sexually abused more than thirty minor girls in his mansion, including Jane Doe Number One and Jane Doe Number Two. 14 Initially, of course, his acts of abuse were secret, unknown to law enforcement. During that period of time, the victims would not have had rights under the CVRA. 88 Criminal Resource Manual, supra note 87, § 9-11.151. 89 Td. 90 18 U.S.C. § 3771 (e) (2012). 91 Td. § 2113. % See id. § 3771 (e). °3 United States v. Rubin, 558 F. Supp. 2d 411, 419 (E.D.N_Y. 2008). °4 As above, see supra notes 34-41 and accompanying text, this part of the Article draws on the factual allegations made by the victims in this case - allegations that Epstein has not intervened to dispute. See Jane Doe Motion, supra note 40, at 3-23. DAVID SCHOEN HOUSE_OVERSIGHT_017626