The constitutional framework that protects a target letter recipient is anchored in the Fifth Amendment privilege against compelled self-incrimination and in the Sixth Amendment right to counsel. The Fifth Amendment provides that no person shall be compelled in any criminal case to be a witness against himself. As the Michigan Supreme Court recognized in the context of right to counsel in People v Wade, __ Mich __ (2024), the Sixth Amendment right to counsel does not generally attach until adversary judicial criminal proceedings are formally initiated—which has not yet occurred when a target letter is received. This means that the pre-charge stage is governed primarily by the Fifth Amendment and by any prophylactic rights derived from the Supreme Court's Fifth Amendment jurisprudence, rather than by the full panoply of Sixth Amendment protections. Understanding this distinction is critical: the right to counsel in the investigation stage is primarily a matter of constitutional prudence, not yet a court-enforceable right that requires appointment of counsel at government expense.

The proffer invitation that often accompanies a federal target letter deserves careful legal analysis. A proffer session is an informal interview conducted by federal prosecutors and agents under a limited agreement that, in its typical form, provides that the target's statements made during the session will not be used directly against the target in the government's case-in-chief. However, proffer agreements typically do not provide immunity from prosecution, do not preclude use of the statements for impeachment at trial, and do not prevent the government from pursuing leads developed from information provided during the proffer. In United States v Mezzanatto, 513 US 196 (1995), the United States Supreme Court held that a defendant who voluntarily participates in plea discussions with the government waives the protection of Rule 410 of the Federal Rules of Evidence, underscoring that statements made in proffer sessions carry substantial risk. No target should participate in a proffer session without experienced defense counsel who has reviewed the government's evidence and assessed the strategic value of cooperation versus silence.

At the state level, the Wayne County Prosecutor's Office may conduct pre-charge investigation through its own investigators, through investigative subpoenas issued under MCL 767A.2 et seq., or through referrals from law enforcement agencies. A court may authorize a prosecuting attorney to issue investigative subpoenas if there is reasonable cause to believe a felony has been committed and that the subpoena target has relevant knowledge. People v Farquharson, 274 Mich App 268 (2007). When a person receives a target letter or other communication suggesting that the Wayne County Prosecutor is investigating their conduct, the procedures of MCL 767A.4(g) guarantee the right to have legal counsel present at all times during any questioning conducted pursuant to an investigative subpoena. The right to challenge the subpoena under MCL 767A.6(1) and to seek a determination by the issuing judge that the person is not required to respond must be asserted promptly.

Document preservation and privilege issues are critical concerns when a target letter is received. A target letter frequently signals the imminent possibility of a subpoena for business records, financial records, electronic communications, or other documents. Attorney-client privilege and the work product doctrine protect communications between the target and defense counsel from compelled disclosure, and ensuring that all communications with counsel from the moment of retention are privileged is a fundamental precaution. Equally important is avoiding obstruction: a target who destroys, alters, or conceals documents after receiving a target letter—or even after learning of an investigation before any formal notice—risks prosecution for obstruction of justice under MCL 750.505 or 18 USC 1519, which can carry penalties more severe than the underlying offense being investigated. Attorney Maze advises target letter clients on document preservation obligations from the first consultation.

In some cases, aggressive pre-charge intervention by defense counsel can persuade the prosecuting authority to decline prosecution altogether. Presenting favorable evidence, correcting prosecutorial misunderstandings of the facts, identifying witnesses who can undermine the government's theory, or negotiating an early resolution that avoids the time and expense of a grand jury proceeding are all tools that experienced defense counsel can deploy before charges are filed—tools that are no longer available once an indictment or information is filed. Attorney Maze has successfully intervened at the pre-charge stage in numerous state and federal investigations, and views early retention as the single most important factor in achieving a favorable outcome.