Material witness
18 U.S.C. § 3144, commonly referred to as the "material witness statute," provides as follows:
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.
A
material witness is an individual who contains information "material" to a criminal proceeding. With the authority of 18 U.S.C. § 3144, the United States government can seek a warrant from a judicial officer in order to arrest a material witness. To do so, a United States official must file an affidavit with the judicial officer alleging that (1) the individual has material information to the criminal proceeding
and (2) it would be "impracticable to secure the presence of the person by
subpoena."
"a criminal proceeding"
Although there has been much legal debate about the scope of the material witness statute, it has been clear since the Ninth Circuit Court of Appeals ruling in
Bacon v. United States', 449 F.2d 933 (9th Cir. 1971), that the phrase "a criminal proceeding" from the material witness statute includes both
trials (uncontroversially) and
grand jury investigations. Thus, the ability to arrest material witnesses under the statute extends to the ability to arrest those with information material to a grand jury investigation (assuming the showing of impracticability is also made). The Supreme Court has not had a chance to rule on this statutory issue.
After September 11, 2001, the United States government admitted to a campaign of aggressive detention, by whatever means possible, of those potentially involved in the attacks on the United States.
[Attorney General Ashcroft Outlines Foreign Terrorist Tracking Task Force, U.S. Department of Justice, October 31, 2001]This included the use of the material witness statute to detain suspects, as opposed to witnesses. Many of those detained as material witneses were detained as witnesses to grand jury proceedings.
[Witness to Abuse: Human Rights Abuses under the Material Witness Law since September 11 (.pdf), Human Rights Watch, June 2005]This caused controversy for several reasons. Primarily, critics saw the government's use of the material witness statute to detain suspects as an evasion of the
Fourth Amendment which provides some protections to criminal suspects that were seemingly ignored in the arrests of the post-September 11 material witness detainees.Secondarily, legal critics took issue anew with the application of the material witness statute to grand jury proceedings. Seemingly in response to this controversy, and with the intent of alleviating the concerns over such use of the material witness statute, Senator Patrick Leahy proposed A Bill to Amend the Material Witness Statute to Strengthen Procedural Safeguards, and for Other Purposes, S. 1739, 109th Cong. § 1 (2005).
[ :A bill to amend the material witness statute to strengthen procedural safeguards, and for other purposes. , Library of Congress] The legislation is currently pending before the Senate Judiciary Committee.
