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I. The Material Witness Law: Overview and Pre-September 11 Use

International human rights law and U.S. domestic law affirm the right to liberty and the necessity of effective safeguards against arbitrary or unreasonable arrest and detention.1U.S. criminal law seeks to prevent unreasonable arrests through various means, including the requirement that no one may be arrested except when there is probable cause to believe that person has committed a crime.2 The requirement of probable cause protects the public “from rash and unreasonable interferences with privacy and from unfounded charges of crime” while giving “fair leeway for enforcing the law in the community’s protection.”3

Exceptions to this fundamental rule of probable cause of criminal conduct before an arrest are few and narrow.4 One of those exceptions is the federal material witness law, which permits the government to hold temporarily a person whose testimony is needed for a criminal proceeding and who is likely to flee instead of testifying.5 This exception reflects a compromise between an individual’s right to liberty and the administration of a fair and workable criminal justice system.

The ability to arrest a witness under federal law dates back to the eighteenth century.6 It is based on the duty of citizens to disclose relevant knowledge in criminal proceedings. However, the authority to arrest a material witness is the most onerous method Congress has set forth to secure the appearance of a witness at a criminal proceeding. Most commonly the government will obtain a subpoena7 to secure the testimony; if a witness fails to comply, the court may jail or fine a witness for being in contempt of court8 or issue an “attachment” to arrest the witness.9 In addition, the court may issue a writ or summons directing a witness to appear under threat of jail for failing to appear.10 The Supreme Court has acknowledged the importance of the authority to arrest a witness to ensure his appearance in those exceptional circumstances when other mechanisms, such as contempt penalties, are “too slight to deter the witness from absenting himself.”11

While Congress has long authorized the arrest of witnesses, it has consistently put restrictions on jailing witnesses, historically permitting detention only if a witness did not provide assurances to a judge that he would testify.12 To further limit the detention of witnesses, Congress added the requirement that witnesses should be deposed in lieu of detention whenever possible.13

Overview of the Material Witness Law

Under the material witness law, the federal government is authorized to arrest a witness to secure his testimony in a criminal proceeding.14 To obtain a witness arrest warrant, the Department of Justice must file an application with a federal district court establishing that (1) an individual has information that is material to a criminal proceeding, and (2) it is impracticable for the government to secure the witness’s presence at a criminal proceeding by a subpoena. In some courts, the government may establish that a material witness has relevant information to a grand jury proceeding simply by submitting a sworn statement from a government official.15 If the government establishes grounds to believe that the witness has relevant information and will flee if served with a subpoena, the court may authorize the warrant.

The material witness statute directs that upon arrest, the witness is to be treated in accordance with the criminal statute that is used to determine whether criminal defendants are released or held before trial. As soon as possible after arresting a material witness, the government must bring the witness to a judicial officer for a detention hearing. The principal issue for the court to determine at the initial hearing is whether the material witness should be released or incarcerated.16 At this hearing, the court can hear any factual or legal challenges to the arrest as well as motions to depose a witness.17

The law indicates a preference for ensuring the appearance of a witness by using alternatives to detention: “The judicial officer shall order the pretrial release of the person on personal recognizance … unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required.”18 There is also a judicial preference in favor of release: “Only in rare circumstances should release be denied.”19

The statute provides that the court can (1) release the witness on his or her own recognizance, (2) release the witness on bond or other conditions, (3) temporarily detain the witness for immigration or probation purposes, or (4) order detention. Detention can be ordered only if the imposition of release conditions will not reasonably assure the witness’s appearance at the proceeding for which his testimony is sought.20 To determine whether there are conditions of release that will reasonably assure appearance, the court must hold a detention hearing immediately upon the person’s initial appearance unless the witness or the government seeks additional time. The witness has the right to be represented by counsel, to have counsel appointed if he is financially unable to obtain representation, and to present and cross-examine witnesses.21

As noted above, in determining whether to release or detain a witness, the court relies on the same statute that governs whether a criminal suspect is detained prior to trial. Generally, this will result in the court weighing the witness’s character, employment, family and community ties to assess the extent to which there is a risk of flight and what, if any, conditions of release will reasonably assure that the person will appear.22

If the court orders a material witness detained, the court must provide a written statement explaining the reasons for detention.23 The court must direct that the witness be held in a detention center separate from individuals awaiting or serving sentences, to the extent that is practicable, and that the witness be afforded a reasonable opportunity for private consultation with counsel.24 Also, if ordered detained or unable to satisfy any release conditions, a witness can request to be deposed in lieu of detention by filing a written motion and notifying the government.25 If the witness makes a motion to be deposed, the government must show that the witness’s testimony cannot be adequately secured by a deposition.26

While Congress emphasized a preference for deposing and then releasing material witnesses, it set no limit on the length of time a witness can be kept incarcerated. Due process requires the duration of the detention to be rationally related to its purpose.27

Arrest of Material Witnesses before September 11

Before September 11, the vast majority of persons arrested as material witnesses were non-U.S. citizens arrested by the former Immigration and Naturalization Service (INS).28 In 2000, for example, 94 percent of the 4,168 federal material witness arrests were made by the INS, and less than 2 percent were citizens.29 Most of the material witnesses arrested by the INS were immigrants who were smuggled into the country, and the INS sought to ensure their testimony in trials against the smugglers before the witnesses left the country.30

Courts generally issued material witness warrants only when the witnesshad demonstrated through his conduct that securing his testimony absent an arrest would be unlikely, e.g., in cases of “a witness moving without leaving a forwarding address, a witness not appearing when requested or subpoenaed to appear, or the inability to serve a subpoena upon a witness.”31 The government had to meet a high threshold of proof that a witness would flee if he or she was subpoenaed because, as one court explained, “Police have less authority to detain those who have witnessed a crime than to detain those suspected of committing a crime under the Fourth Amendment.”32 Absent a strong showing by the government, courts would quash the warrant, as, for example, the U.S. Court of Appeals for the Ninth Circuit did in 1984 when it ruled that a material witness warrant was not valid, even where the witness informed the government he would not testify unless subpoenaed and agents attempted service on the witness multiple times to no avail:

The facts do not show that [the material witness] was a fugitive or that he would be likely to flee the jurisdiction; rather, they only show a man somewhat obstinately insisting upon his right to refuse to appear before a grand jury until personally served. Those facts are insufficient to provide probable cause for believing that [the witness’s] attendance could not be secured by subpoena.33

[1] International Covenant on Civil and Political Rights (ICCPR), G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, Art. 9(1) (“Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”). The United States ratified the ICCPR in 1992. United States Constitution IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”). The Due Process Clause of the Fifth Amendment also safeguards against arbitrary detention, as recognized by the U.S. Supreme Court: “Freedom from imprisonment—from government custody, detention, or other forms of physical restraint—lies at the heart of the liberty that Clause protects.” Zadvydas v. Davis, 533 United States Supreme Court Reporter (U.S.) 678, 690 (2001).

[2]Probable cause is satisfied when a judge determines that there existed circumstances “sufficient to warrant a prudent man in believing that the [suspect] had committed or was committing an offense.” Beck v. Ohio, 379 U.S. 89, 91 (1964). For a seizure to be constitutional under the Fourth Amendment, law enforcement officers must “point to specific and articulable facts … which reasonably warrant the intrusion.” Terry v. Ohio, 392 U.S. 1, 21 (1968).

[3]Brinegar v. United States, 338 U.S. 160, 176 (1949).

[4]See, e.g., Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (discussing permissible uses of detention outside the criminal context).

[5]Title 18 United States Code (U.S.C.) Section (§) 3144. The material witness law provides in full:

Release or detention of a material witness

If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.

[6]Bacon v. United States, 449 Federal Reporter, Second Series (F.2d) 933, 938-39 (Ninth Circuit (Cir.) 1971).

[7]See, e.g., Blackmer v. United States, 284 U.S. 421 (1932).

[8]18 U.S.C. § 402; 19 U.S.C. § 3691.

[9]See, e.g., Lyons v. Lyons, 279 Alabama 329, 331, 185 Southern Reporter, Second Series (So.2d) 121, 122- 23 (1966).

[10]28 U.S.C. § 1826. Witnesses are also subject to the Federal Fugitive Justice Act, which makes it a crime for a witness to flee a jurisdiction to avoid giving testimony. 18 U.S.C. § 1073 (2000).

[11]Barry v. United States ex relatione Cunningham, 279 U.S. 597, 618 (1927) (citation omitted).

[12]Ricardo J. Bascuas, “The Unconstitutionality of ‘Hold until Cleared’: Reexamining Material Witness Detentions in the Wake of the September 11th Dragnet,” Vanderbilt Law Review, April 2005, available online at:, accessed on June 17, 2005.

[13]In 1984, Congress amended the material witness law to expressly allow judges to order the detention of material witnesses in limited circumstances while still providing that “[n]o material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice.” 18 U.S.C. § 3144. The Senate Appropriations Committee, which was responsible for the amendment, “stresse[d] that whenever possible, the deposition of such witnesses should be obtained so that they may be released from custody.” United States Senate Reporter (S. Rep.) No. 98-225, 1984 U.S.C.C.A.N. 3182 (Aug. 4, 1983).

[14]18 U.S.C. § 3144

[15]See, e.g., Bacon v. United States, 449 F.2d 933, 938-939 (9th Cir. 1971).

[16]18 U.S.C. § 3142.

[17]See, e.g., Stone v. Holzberger, 807 Federal Supplement (F.Supp.) 1325, 1338 (S.D. Ohio 1992).

[18] 18 U.S.C. § 3142(b); 18 U.S.C. § 3142(c), (f). The statute provides the court with a number of conditions to impose on a witness in lieu of detention to ensure that the witness will appear at the criminal proceeding. Such conditions include regularly reporting to the court or a government agency, maintaining employment, maintaining or commencing an educational program, abiding by restrictions on travel and abode, complying with a curfew, or returning to custody for specified hours. 18 U.S.C. § 3142(c)(1)(B).

[19]United States v. Motamedi, 767 F.2d 1403, 1405 (9th Cir. 1985) (quoting Sellers v. United States, 89 S.Ct. 36, 38 (1968). “Federal law has traditionally provided that a person arrested for a non-capital offense shall be admitted to bail.” Ibid (citing Stack v. Boyle, 342 U.S. 1, 4 (1951)).

[20]18 U.S.C. § 3142(g). Section 3142 allows judicial officers to “order the pretrial release of the person on personal recognizance, or upon execution of an unsecured appearance bond in an amount specified by the court … unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required.” 18 U.S.C. § 3142(b). For criminal defendants, the statute also allows the judge to assess whether or not release “will endanger the safety of any other person or their community.” However, Congress made clear that this is not a factor relevant to the decision to detain a material witness. United States v. Awadallah, 349 F.3d 42, 63 n.15 (2d Cir. 2003).

[21]18 U.S.C. § 3142(f); 18 U.S.C. § 3006A(a)(1)(G).

[22]18 U.S.C. § 3142(g).

[23]18 U.S.C. § 3142(i)(1); In re Grand Jury Material Witness Detention, 271 Federal Supplement, Second Series (F. Supp. 2d) 1266 (D. Or. 2003).

[24]18 U.S.C. § 3142(i)(2), (3).

[25]Federal Rules of Criminal Procedure (Fed R. Crim. P.), p. 15.

[26]18 U.S.C. § 3144.

[27]See, e.g., Jackson v. Indiana, 406 U.S. 715, 738 (1972) (holding that "a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future"). Furthermore, under Jackson, “[E]ven if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal." Ibid. See also Zadvydas v. Davis, 533 U.S. 678 (2001) (finding that, under statute permitting detention for purpose of carrying out removal, detention is no longer authorized once removal is no longer reasonably foreseeable).

[28]Until March 1, 2003, immigration was handled by the INS, a division of the Department of Justice. Now, the Department of Homeland Security is charged with many immigration matters. The Bureau of Immigrations and Customs Enforcement (ICE) handles immigration enforcement within the U.S. borders.

[29] Bureau of Justice Statistics, U.S. Department of Justice, Compendium of Federal Justice Statistics 2000, available online at:, accessed on Sept. 1, 2004 (Compendium of Federal Justice Statistics 2000).

[30]See, e.g., Aguilar-Ayala v. Ruiz, (5th Cir. 1992), 973 F.2d 411; United States v. Lai Fa Chen, 214 F.R.D. 578 (N.D.Cal. 2003); United States v. Nai, 949 F.Supp. 42 (D.Mass. 1996); United States v. Huang, 827 F.Supp. 945 (S.D.N.Y.1993); In re Class Action Application for Habeas Corpus on Behalf of All Material Witnesses in Western Dist. of Texas, 612 F.Supp. 940 (W.D.Tex.1985). Even in these cases, courts frequently ordered the government to depose the witness or approved detention for a limited time. Detention was considered necessary in some cases to preserve a defendant’s Sixth Amendment right to cross-examine his accusers. See, e.g., United States v. Lai Fa Chen, 214 F.R.D. 578 (N.D.Cal. 2003).

[31]Stacey M. Studnicki and John P. Apol, “Witness Detention and Intimidation: The History and Future of Material Witness Law,” 76 St. John’s Law Review, p. 483, 499.

[32]Orozco v. County of Yolo, 814 F. Supp. 885, 893 (E.D.Cal.1993).

[33]Arnsberg v. United States, 757 F.2d 971, 976 (9th Cir. 1984). See also, Bacon v. United States, 449 F.2d 933. 938-939 (9th Cir. 1971); Perkins v. Click, 148 F. Supp. 2d 1177, 1183 (D.N.M. 2001).

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