Arrest and Detention of Material Witnesses: Federal Law In Brief
Released: 2006-03-08T00:00:00

Introduction

Witnesses in a federal criminal case may find themselves arrested, held for bail, and in some cases imprisoned until they are called upon to testify, 18 U.S.C. 3144. The same is true in most if not all of the states. Although subject to intermittent criticism, it has been so at least from the beginning of the Republic. The Supreme Court has never squarely considered the constitutionality of section 3144 or any of its predecessors, but it has observed in passing that, "[t]he duty to disclose knowledge of crime . . . is so vital that one known to be innocent may be detained in the absence of bail, as a material witness," Stein v. New York , 346 U.S. 156, 184 (1953). Even more telling may be an earlier remark from the Court to the effect that, "[t]he constitutionality of this [federal material witness] statute apparently has never been doubted," Barry v. United States ex rel. Cunningham , 279 U.S. 597, 617 (1929).

In spite of the concerns of some that the authority can be used as a means to jail a suspect while authorities seek to discover probable cause sufficient to support a criminal accusation or as a preventive detention measure, the lower courts have denied that the federal material witness statute can be used as a substitute for a criminal arrest warrant. Particularly in the early stages of an investigation, however, an individual's proximity to a crime may make him both a legitimate witness and a legitimate suspect.

The case law and statistical information suggest that the federal statute is used with surprising regularity and most often in the prosecution of immigration offenses involving material witnesses who are foreign nationals. Critics, however, contend that since September 11, 2001, seventy individuals, mostly Muslims, have been arrested and detained in abuse of the statute's authority.

Arrest

The federal material witness statute provides that:

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 [relating to bail]. 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. 18 U.S.C. 3144.

An arrest warrant for a witness with evidence material to a federal criminal proceeding may be issued by federal or state judges or magistrates. The statute applies to potential grand jury witnesses as well as to potential trial witnesses. Section 3144 on its face authorizes arrest at the behest of any party to a criminal proceeding. In the case of criminal trial, both the government and the defendants may call upon the benefits of section 3144. Availability is a bit less clear in the case of grand jury proceedings. In a literal sense, there are no parties to a grand jury investigation other than the grand jury. Moreover, it seems unlikely that a suspect, even the target of a grand jury investigation, would be considered a "party" to a grand jury proceeding. The purpose of section 3144 is the preservation of evidence for criminal proceedings. Potential defendants, even if they are the targets of a grand jury investigation, have no right to present evidence to the grand jury. On the other hand, a federal prosecutor ordinarily arranges for the presentation of witnesses to the grand jury. It is therefore not surprising that the courts seem to assume without deciding that the government may claim the benefits of section 3144 in the case of grand jury witnesses.

Issuance of a section 3144 arrest warrant requires affidavits establishing probable cause to believe (1) that the witness can provide material evidence, and (2) that it will be "impracticable" to secure the witness' attendance at the proceeding simply by subpoenaing him. Neither the statute nor the case law directly address the question of what constitutes "material" evidence for purposes of section 3144, but in other contexts the term is understood to mean that which has a "natural tendency to influence, or is capable of influencing, the decision of the decisionmaking body to which it was addressed." At the grand jury level, the government may establish probable cause to believe a witness can provide material evidence through the affidavit of a federal prosecutor or a federal investigator gathering evidence with an eye to its presentation to the grand jury. This may not prove a particularly demanding standard in some instances given the sweeping nature of the grand jury's power of inquiry.

As to the second required probable cause showing, a party seeking a material witness arrest warrant must establish probable cause to believe that it will be impractical to rely upon a subpoena to securing the witness' appearance. The case law on point is sketchy, but it seems to indicate that impracticality may be shown by evidence of possible flight, or of an expressed refusal to cooperate, or of difficulty experienced in serving a subpoena upon a trial witness, or presumably by evidence that the witness is a foreign national who will have returned or been returned home by the time his testimony is required. Evidence that investigators have experienced difficulties serving a particular grand jury witness may not be enough to justify the issuance of an arrest warrant in all cases.

Bail

With limited variations, federal bail laws apply to material witnesses arrested under section 3144. Arrested material witnesses are entitled to the assistance of counsel during bail proceedings and to the appointment of an attorney when they are unable to detain private counsel. The bail laws operate under an escalating system in which release is generally favored, then release with conditions or limitations is preferred, and finally as a last option detention is permitted. A defendant is released on his word (personal recognizance) or bond unless the court finds such assurances insufficient to guarantee his subsequent appearance or to ensure public or individual safety. A material witness need only satisfy the appearance standard. A material witness who is unable to do so is released under such conditions or limitations as the court finds adequate to ensure his later appearance to testify. If neither word nor bond nor conditions will suffice, the witness may be detained. The factors a court may consider in determining whether a material witness is likely to remain available include his deposition, character, health, and community ties.

Depositions

Section 3144 declares 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." The corresponding federal deposition rule permits the witness, the government, or the defendant to request that a detained material witness' deposition be taken. A court enjoys only limited discretion to deny a detained witness' request. The Fifth Circuit has observed that, "Read together, Rule 15(a) and section 3144 provide a detained witness with a mechanism for securing his own release. He must file a written motion requesting that he be deposed. The motion must demonstrate that his testimony can adequately be secured by deposition, and that further detention is not necessary to prevent a failure of justice. Upon such showing, the district court must order his deposition and prompt release," Aguilar-Ayala v. Ruiz , 973 F.2d 411, 413 (5 th Cir. 1992). Other courts seem to agree. The "failure of justice" limitation comes into play when release of the witness following the taking of his deposition would ultimately deny a defendant the benefit of favorable material testimony in derogation of his right to compulsory process. It does not include the fact that a judicial officer will not be present at the taking of the deposition or that the witness is an illegal alien subject to prosecution.

Unlike the request of a detained witness, a government or defendant's request that a witness' deposition be taken must show "exceptional circumstances" and that granting the request is "in the interest of justice," F.R.Crim.P. 15(a)(1). Nevertheless, the fact that a witness is being detained will often be weighed heavily regardless of who requests that depositions be taken. The Circuits appear to be divided over whether in compliance with a local standing order the court may authorize depositions to be taken sua sponte in order to release a detained material witness. In any event, whether any such depositions may be introduced in later criminal proceedings will depend upon whether the defendant's constitutional rights to confrontation and compulsory process have been accommodated.

Related Matters

The government must periodically report to the court on the continuing justification for holding an incarcerated material witness. While a material witness is being held in custody he is entitled to the daily witness fees authorized for attendance at judicial proceedings. Upon his release, the court may also order that he be provided with transportation and subsistence to enable him to return to his place of arrest or residence. Should he fail to appear after he has been released from custody he will be subject to prosecution, an offense which may be punished more severely if his failure involves interstate or foreign travel to avoid testifying in a felony case.

Legislative Activity in 109th Congress

H.R. 3199

Witnesses at Congressional oversight hearings charged that the authority under 18 U.S.C. 3144 had been misused following September 11, 2001:

[The authority has been used] to secure the indefinite incarceration of those [prosecutors] wanted to investigate as possible terrorist suspects. This allowed the government to . . . avoid the constitutional protections guaranteed to suspects, including probable cause to believe the individual committed a crime and time-limited detention. . .

Witnesses were typically held round the clock in solitary confinement, subjected to the harsh and degrading high security conditions typically reserved for the most dangerous inmates accused or convicted of the most serious crimes. . . they were interrogated without counsel about their own alleged wrongdoing.

. . . [A] large number of witnesses were never brought before a grand jury or court to testify. More tellingly, in repeated cases the government has now apologized for arresting and incarcerating the "wrong guy." The material witnesses were victims of the federal investigators and attorneys who were to[o] quick to jump to the wrong conclusions, relying on false, unreliable and irrelevant information. By evading the probable cause requirement for arrests of suspects, the government made numerous mistakes.

At the same hearings the Justice Department pointed out that the material witness statute is a long-standing and generally applicable law and not a creation of the USA PATRIOT Act; that it operates under the supervision of the courts; that witnesses are afforded the assistance of counsel (appointed where necessary); and that witnesses are ordinarily released following their testimony.

When the Committee reported H.R. 3199 following the hearings, section 12 of the bill amended section 1001 of the USA PATRIOT Act by directing periodic review of the exercise of the authority under section 3144. In its original form section 1001 instructs the Justice Department Inspector General to designate an official who is (1) to receive and review complaints of alleged Justice Department civil rights and civil liberties violations, (2) to widely advertise his availability to receive such complaints, and (3) to report to the House and Senate Judiciary Committees twice a year on implementation of that requirement, P.L. 107-56 , 115 Stat. 381 (2001). Section 12 amended section 1001 to impose additional responsibilities upon the Inspector General's designee , i.e. , (1) to "review detentions of persons under section 3144 of title 18, United States Code, including their length, conditions of access to counsel, frequency of access to counsel, offense at issue, and frequency of appearances before a grand jury," (2) to advertise his availability to receive information concerning such activity, and (3) to report twice a year on implementation to the Judiciary Committees on implementation of this requirement.

OMB announced that the Administration generally supports H.R. 3199 as passed by the House, but that "[t]he Administration strongly oppose[d] section 12 of H.R. 3199 , which would authorize the Department of Justice's Inspector General to investigate the use of material witnesses. As it is written, this provision would entail wholesale violation of Rule 6(e) of the Federal Rules of Criminal Procedure, which protects the secrecy and sanctity of grand jury proceedings."

The exact nature of OMB's objection is somewhat unclear. Rule 6(e) prohibits disclosure of matters occurring before the grand jury, F.R.Crim.P. 6(e). Its purpose is to: (1) prevent the flight of suspects, (2) avoid defaming suspects ultimately found blameless, (3) shield the grand jury from the corrupt influences of the targets of its investigations, and (4) encourage witnesses to be forthcoming. The rule does not prohibit disclosure by grand jury witnesses of matters occurring during their appearance before the panel. There is some authority for the proposition that the rule does not bar disclosure to Congress. And there is reason to believe that the rule does not apply to executive branch officials with supervisory authority over Justice Department attorneys who assist the grand jury. In addition, from time to time, Congress has created several other exceptions to the rule's general prohibitions either by amendment of the Rule, or by a provision elsewhere in the Code.

The OMB statement that "[a]s it is written, this provision would entail wholesale violation of Rule 6(e) of the Federal Rules of Criminal Procedure" may be an objection to the fact that the proposal does not take the form of an amendment to Rule 6(e). Yet it seems unlikely that OMB would base a statement of "strong" opposition solely on a question of legislative drafting style.

The statement could be read as a claim that Congress lacks the legislative authority to enact a provision at odds with Rule 6(e). But this cannot be. The rules were and are promulgated as an exercise of legislative authority. Even when amendments to the Federal Rules of Criminal Procedure come from the courts they are subject to Congressional rejection or modification before they become effective.

The statement might be understood to declare that compliance with section 12 would involve "wholesale" disclosures which would be contrary to the purpose and demands of Rule 6(e) were it not superseded by the instructions of section 12. This might be seen as a contention that without the intervention of section 12, Rule 6(e) would prohibit disclosure of the information identified in section 12 to the designee of the Justice Department's Inspector General, or to the House and Senate Judiciary Committees, or to either of them.

This may be something of an overstatement. First, Rule 6(e) is implicated only with regard to matters occurring before the grand jury. Thus, Rule 6(e) is not implicated with respect to information concerning the detention of material trial witnesses under section 3144 of title 18. Nor is it clear that Rule 6(e) would be implicated by disclosure of information concerning the length of confinement or access to counsel of material grand jury witnesses as long as individual witnesses were not identified; nor of information in the aggregate of the offenses at issue and frequency of grand jury appearances of incarcerated material witnesses. But for section 12, Rule 6(e) would seem to apply to the identities of incarcerated grand jury witnesses, the offenses under consideration by specific grand jury panels, and the frequency of appearance by specific incarcerated witnesses. Even here, however, it is far from clear that absent section 12 the Rule would preclude disclosure to Congress or to Justice Department officials whose duties include investigation of misconduct by Department attorneys.

Nevertheless, perhaps because of Administration opposition, the provision was dropped from H.R. 3199 prior to House passage. No similar provision could be found in H.R. 3199 ( S. 1389 ) as approved in the Senate, in the conference bill, H.Rept. 109-333 (2005), or the legislation ultimately enacted.

S. 1739

S. 1739 , introduced by Senator Leahy, rewrites section 3144. In its recast form, section 3144 among other things would:

establish a preference for postponing arrest until after a material witness has been served with a summons or subpoena and failed or refused to appear, unless the court finds by clear and convincing evidence that service is likely to result in flight or otherwise unlikely to secure the witness' attendance; make it clear that the provision applies to grand jury proceedings; explicitly permit arrest by officers who are not in physical possession of the warrant; require an initial judicial appearance without unnecessary delay in the district of the arrest or in an adjacent district if more expedient or if the warrant was issued there and the appearance occurs on the day of arrest; limit detention to 5 day increments for a maximum of 30 days (10 days in the case of grand jury witness); require the Attorney General to file an annual report to the Judiciary Committees on the number of material witness warrants sought, granted and denied within the year; the number of material witnesses arrested who were not deposed or did not appear before judicial proceedings; and the average number of days arrested material witnesses were detained.

In lieu of the clear and convincing evidence standard in favor of release and the time limits on detention, the existing statute insists that "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," 18 U.S.C. 3144. The proposed amendment has no comparable provision.

In light of the 5 day limit on detention without further judicial approval, S. 1739 would eliminate the reporting requirement now found in Rule 46(h)(2) of the Federal Rules of Criminal Procedure, i.e., "An attorney for the government must report biweekly to the court, listing each material witness held in custody for more than 10 days pending indictment, arraignment, or trial. For each material witness listed in the report, an attorney for the government must state why the witness should not be released with or without a deposition being taken under Rule 15(a)."

Appendix A. 18 U.S.C. 3144 (S. 1739 proposed amendments)

(a) Arrest of Material Witnessâ

(1) A judicial officer may order the arrest of a person as a material witness, if it appears from an affidavit filed by a party in a criminal case before a court of the United States, or by an attorney for the Government in a matter occurring before a Federal grand jury, that there is probable cause to believe thatâ(A) the testimony of such person is material in such case or matter; and (B) the person has been served with a summons or subpoena and failed or refused to appear as required.

(2) A judicial officer may waive the summons or subpoena requirement described in paragraph (1)(B), if the judicial officer finds by clear and convincing evidence that the service of a summons or subpoenaâ(A) is likely to result in the person fleeing; or (B) cannot adequately secure the appearance of the person as required.

(b) Warrant for Material Witnessâ

(1) A warrant issued under subsection (a) shallâ(A) contain the name of the material witness or, if the name of such witness is unknown, a name or description by which the witness can be identified with reasonable certainty; (B) specify that the testimony of the witness is sought in a criminal case or grand jury proceeding; (C) command that the witness be arrested and brought without unnecessary delay before a judicial officer; (D) inform the witness of the witness's right to retain counsel or to request that counsel be appointed if the witness cannot obtain counsel; and (E) be signed by a judicial officer.

(2)(A) A warrant issued under subsection (a) shall be executed by arresting the material witness. (B) (i) Upon arrest, an officer possessing the warrant shall show such warrant to the material witness. (ii) If an officer does not possess the warrant at the time of arrest of a material witness, an officerâ(I) shall inform the witness of the existence and purpose of the warrant; and (II) at the request of the witness, shall provide the warrant to the witness as soon as possible.

(3)(A) After executing a warrant issued under subsection (a), an officer shall return the warrant to the judicial officer before whom the material witness is brought in accordance with subsection (c). (B) At the request of an attorney for the United States Government, an unexecuted warrant shall be brought back to and canceled by a judicial officer.

(c) Initial Appearanceâ

(1) A material witness arrested pursuant to a warrant issued under subsection (a) shall be brought without unnecessary delay before a judicial officer.

(2) The initial appearance of a material witness arrested pursuant to a warrant issued under subsection (a) shall beâ(A) in the district of arrest; or (B) in an adjacent district ifâ(i) the appearance can occur more promptly there; or (ii) the warrant was issued there and the initial appearance will occur on the day of the arrest.

(3) At the initial appearance described in paragraph (2), a judicial officer shallâ(A) inform a material witness ofâ(i) the warrant against the witness, and the application and affidavit filed in support of the warrant; and (ii) the witness's right to retain counsel or to request that counsel be appointed if the witness cannot obtain counsel; (B) allow the witness a reasonable opportunity to consult with counsel; (C) release or detain the witness as provided by subsection (d); and (D) if the initial appearance occurs in a district other than where the warrant issued, transfer the witness to such district, provided that the judicial officer finds that the witness is the same person named in the warrant.

(d) Release or Detentionâ

(1) Upon the appearance before a judicial officer of a material witness arrested pursuant to a warrant issued under subsection (a), the judicial officer shall order the release or detention of such witness.

(2)(A) A judicial officer shall order the release of a material witness arrested pursuant to a warrant issued under subsection (a) on personal recognizance or upon execution of an unsecured appearance bond under section 3142(b), or on a condition or combination of conditions under section 3142(c), unless the judicial officer determines by clear and convincing evidence that such release will not reasonably assure the appearance of the witness as required. (B) No material witness may be detained because of the inability of the witness to comply with any condition of release if the testimony of such witness can adequately be secured by deposition.

(3)(A) If, after a hearing pursuant to the provisions of section 3142(f)(2), a judicial officer finds by clear and convincing evidence that no condition or combination of conditions will reasonably assure the appearance of a material witness as required by this section, such judicial officer may order that the witness be detained for a period not to exceed 5 days, or until the testimony of the witness can adequately be secured by deposition or by appearance before the court or grand jury, whichever is earlier. (B)(i) Subject to clause (ii), upon the motion of a party (or an attorney for the United States Government in a matter occurring before a Federal grand jury), the period of detention under subparagraph (A) may be extended for additional periods of up to 5 days, or until the testimony of a material witness can adequately be secured by deposition or by appearance before the court or grand jury, whichever is earlier. (ii) The total period of detention under this subparagraph may not exceedâ(I) 30 days, where the testimony of the witness is sought in a criminal case; or (II) 10 days, where the testimony of the witness is sought in a grand jury proceeding. (C) A motion under subparagraph (B) shall demonstrate good cause for why the testimony of a material witness could not adequately be secured by deposition or by appearance before the court or grand jury during the previous 5-day period.

(4) A judicial officer, in determining whether a material witness should be released or detainedâ(A) shall take into account the available information concerning the history and characteristics of the witness, including the information described in section 3142(g)(3)(A); and (B) may consider challenges to the basis of the warrant.

(5) A release order issued under paragraph (2) shall comply with the requirements of paragraphs (1) and (2)(B) of section 3142(h).

(6) A detention order issued under paragraph (3) shall comply with the requirements of section 3142(i), provided that a judicial officer shall direct that a material witness be heldâ(A) in a facility separate and apart, to the extent practicable, from persons charged with or convicted of a criminal offense; and (B) under the least restrictive conditions possible.

(e) Reportâ

(1) Notwithstanding any other provision of law, the Attorney General shall provide to the Committees on the Judiciary of the Senate and the House of Representatives an annual report regarding the use of this section by the United States Government during the preceding 1-year period.

(2) A report required under paragraph (1) shall includeâ(A) the number of warrants sought under subsection (a), and the number either granted or denied; (B) the number of material witnesses arrested pursuant to a warrant issued under subsection (a) whose testimony was not secured by deposition or by appearance before the court or grand jury, and the reasons therefore; and (C) the average number of days that material witnesses arrested pursuant to a warrant issued under subsection (a) were detained. Proposed 18 U.S.C. 3144 (some captions omitted).

Appendix B. Citations to State Material Witness Statutes

Appendix C. Bibliography

Articles

Bascuas, The Unconstitutionality of "Hold Until Cleared": Reexamining Material Witness Detentions in the Wake of the September 11 th Dragnet , 58 Vanderbilt Law Review 677 (2005).

Boyle, The Material Witness Statute Post September 11: Why It Should Not Include Grand Jury Witnesses , 48 New York Law School Law Review 12 (2003).

Carlson, Jailing the Innocent: The Plight of the Material Witness , 55 Iowa Law Review 1 (1969).

Carlson & Voelpel, Material Witness and Material Justice , 58 Washington University Law Quarterly 1 (1980).

Iraola, Terrorism, Grand Juries, and the Federal Material Witness Statute , 34 St. Mary's Law Journal 401(2003).

Levinson, Detention, Material Witnesses & the War on Terrorism , 35 Loyola of Los Angeles Law Review 1217 (2002).

Margulies, Detention of Material Witnesses, Exigency, and the Rule of Law , 40 Criminal Law Bulletin 4 (Nov. 2004).

Studnicki, Material Witness Detention: Justice Served or Denied? 40 Wayne Law Review 1533 (1994).

Studnicki & Apol, Witness Detention and Intimidation: The History and Future of Material Witness Law , 76 St. John's Law Review 483 (2002).

Notes

The Application of Material Witness Provisions: A Case StudyâAre Homeless Material Witnesses entitled to Due Process and Representation by Counsel? 36 Villanova Law Review 597 (1991).

Cessante Ratione Legis Cessat Ipsa Lex (The Plight of the Detained Material Witness) , 7 Catholic University Law Review 37 (1957).

Confining Material Witnesses in Criminal Cases , 20 Washington & Lee Law Review 164 (1963).

A Mandatory Right to Counsel for the Material Witness , 19 University of Michigan Journal of Law Reform 473 (1986).

Material Witnesses in Criminal Proceedings: Securing and Assuring Their Attendance , 18 Missouri Law Review 38 (1953).

Pretrial Detention of Witnesses , 117 University of Pennsylvania Law Review 700 (1969).

United States v. Awadallah: Uncle Sam Wants You to Spend Eighty-Three Days Behind Bars? An Analysis of the Case and Its Implications for Fourth Amendment Jurisprudence , 78 St. John's Law Review 185 (2004).

WitnessesâImprisonment of the Material Witness for Failure to Give Bond, 40 Nebraska Law Review 503 (1961).