Arrest and Detention of Material Witnesses: Federal Law in Brief and Section 12 of the USA PATRIOT and Terrorism Prevention Reauthorization Act (H.R. 3199)
Prepared for Members and Committees of Congress
This is an overview of the law under the federal material witness statute which authorizes the
arrest of material witnesses, permits their release under essentially the same bail laws that apply
to federal criminal defendants, but favors their release after their depositions have taken.
Witnesses at Congressional oversight hearings alleged that the authority to arrest and hold
material witnesses until their appearance at federal criminal proceedings (including grand jury
proceedings) had been abused following September 11, 2001. Section 12 of the USA PATRIOT
Act and Terrorism Prevention Reauthorization Act (H.R. 3199) as reported by the House
Judiciary Committee called for a periodic review and reports on the use of the material witness
statute. In the face of Administration opposition, however, the provision was dropped from the
bill prior to House consideration. No similar proposal could be found in the version of H.R. 3199
(S. 1389) approved in the Senate or in the conference bill sent to the President. S. 1739 would
rewrite the federal statute, setting detention time limits and raising evidentiary standards for arrest
and detention among other things.
A list of citations to comparable state statutes and a bibliography of law review articles and notes
The report is available in an abridged form—without footnotes, citations to most authorities and
appendices—as CRS Report RS22259, Arrest and Detention of Material Witnesses: A Sketch, by
Introduc tion ............................................................................................................................... 1
Arrest ......................................................................................................................... ................ 3
Bail ............................................................................................................................................ 5
Deposit ions ................................................................................................................................ 6
Related Matters.........................................................................................................................7 th
Legislative Activity in 109 Congress......................................................................................8
Appendix A. 18 U.S.C. 3144 (S. 1739 proposed amendments)....................................................13
Appendix B. Citations to State Material Witness Statutes.............................................................16
Appendix C. Bibliography.............................................................................................................17
Author Contact Information..........................................................................................................18
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 12
not all of the states. Although subject to intermittent criticism, it has been so at least from the 3
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 4
(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).
1 A discussion of the provisions of state law is beyond the scope of this report. Citations to the state statutes are
2 1 BISHOP, CRIMINAL PROCEDURE, 18-9 (2d ed. 1872)(“The committing magistrate, having the witnesses for the
prosecution before him, will take their recognizances to appear and testify before the upper court. Sometimes the
purposes of justices require that these recognizances should be with sureties, and occasionally the unpleasant result
follows that a witness cannot obtain sureties, and he is detained in prison”); ALI, CODE OF CRIMINAL PROCEDURE, §58
note (Tent.Draft 1928)(“One of the evils in connection with the administration of the criminal law in most states is the
practice or confining for long periods of time, generally in the country jail, witnesses who cannot give bail”); Cessante
Ratione Legis Cessat Ipsa Lex (The Plight of the Detained Material Witness), 7 CATHOLIC UNIVERSITY LAW REVIEW
37, 50 (“Failure of state and federal government to come up with a sound policy in dealing with the problem of material
witnesses is manifestly a deplorable situation”); Studnicki, Material Witness Detention: Justice Served or Denied? 40
WAYNE LAW REVIEW 1533, 1568 (1994) (“The continued use of material witnesses statutes will undoubtedly be an
issue debated well into the next century. Whether the criminal justice system abandons this ancient practice in factor of
a more humane policy toward the treatment of witnesses remains to be seen”); Boyle, The Material Witness Statute
Post September 11: Why It Should Not Include Grand Jury Witnesses, 48 NEW YORK LAW SCHOOL LAW REVIEW 13, 13
(2003)(“Upon the mere conclusory statement of a government official that a person has material information and might
not respond to a subpoena, the person may incarcerated for an indefinite period of time, without bail, and under onerous
3 1 Stat. 91 (1789)(“copies of the process [criminal complaint] shall be returned as speedily as may be into the clerk’s
office of such court, together with the recognizances of the witnesses for their appearance to testify in the case; which
recognizances the magistrate before whom the examination shall be, may require on pain of imprisonment”); see also,
Rev. Stat. §879 (1878)(“Any judge or other officer who may be authorized to arrest and imprison or bail persons
charged with any crime or offense against the United States may, at the hearing of any such charge, require of any
witness produced against the prisoner, on pain of imprisonment, a recognizance, with or without sureties, in his
discretion, for his appearance to testify in the case”); 28 U.S.C. 657 (1926 ed.); F.R.Crim.P. 46(b), 18 U.S.C. App.
(1946 ed.); 18 U.S.C. 3149 (1970 ed.).
4 See also, Blair v. United States, 250 U.S. 273, 280-81(1919)(“At the foundation of our federal government the
inquisitorial function of the grand jury and compulsion of witnesses were recognized as incidents of the judicial power
of the United States. . .[B]y the Sixth Amendment, in all criminal prosecutions the accused was given the right to a
speedy trial and public trial, with compulsory process for obtaining witnesses in his favor. By the first Judiciary Act,
the mode of proof by examination of witnesses in the courts of the United States was regulated, and their duty to appear
and testify was recognized. . . [The Revised Statutes] contain provisions for requiring witnesses in criminal proceedings
to give recognizance for their appearance to testify, and for detaining them in prison in default of such recognizance. In
all of these provisions . . . it is clearly recognized that the giving of testimony and the attendance upon court or grand
jury in order to testify are public duties which every person within the jurisdiction of the government is bound to
perform upon being properly summoned . . . The personal sacrifice involved is a part of the necessary contribution of
the individual to the welfare of the public. The duty, so onerous at times, [is] yet so necessary to the administration of
justice to the forms and modes established in our system of government. . .”); VIII WIGMORE ON EVIDENCE §§2190-
2192 (3d ed. 1940).
In spite of the concerns of some that the authority can be used as a means to jail a suspect while 5
authorities seek to discover probable cause sufficient to support a criminal accusation or as a 6
preventive detention measure, the lower courts have denied that the federal material witness 7
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 8
witness and a legitimate suspect.
The case law and statistical information suggest that the federal statute is used with surprising 9
regularity and most often in the prosecution of immigration offenses involving material 10
witnesses who are foreign nationals. Critics, however, contend that since September 11, 2001,
5 Carlson & Voelpel, Material Witness and Material Injustice, 58 WASHINGTON UNIVERSITY LAW REVIEW 1, 9
(1980)(“Over the years prosecutors and police have sometimes invoked the power to confine criminal suspects as
witnesses while gathering evidence against the witness-defendant”).
6 Levenson, Detention, Material Witnesses & the War on Terrorism, 35 LOYOLA OF LOS ANGELES LAW REVIEW 1217,
1225 (2002)(“Material witness laws provide the government with the perfect avenue to jail those it considers
dangerous. It is preventive detention. . . The government uses these laws to round up people because of what it expects
them to do, rather than what it can prove they have done”).
7 United States v. Awadallah, 349 F.3d 42, 59 (2d Cir. 2003)(“The district court noted (and we agree) that it would be
improper for the government to use §3144 for other ends, such as the detention of persons suspected of criminal
activity for which probable cause has not yet been established. However, the district court made no finding (and we see
no evidence to suggest) that the government arrested Awadallah for any purpose other than to secure information st
material to a grand jury investigation”); In re De Jesus Berrios, 706 F.2d 355, 358 (1 Cir. 1983)(“no showing has been
made that the arrest was a subterfuge designed to obtain non-testimonial evidence or to bring a target before the grand
jury”)(even though the witness had been subpoenaed to appear before the grand jury to testify, provide hair samples,
and take part in a lineup).
8 Those subject to arrest under the federal statute include Terry Nichols (subsequently convicted for complicity in the
Oklahoma City bombing), In re Material Witness Warrant, 77 F.3d 1277, 1278 (10th Cir. 1996); Jose Padilla
(subsequently transferred to military custody as an “enemy combatant”), Rumsfeld v. Padilla, 542 U.S. 426, 430-31
(2004); and Brandon Mayfield (whose fingerprint was erroneous thought to match one linked to the Madrid train
bombing), In re Federal Grand Jury Proceedings, 337 F.Supp.2d 1218, 1220-221 (D. Ore. 2004).
9 United States magistrate judges conducted 4882 material witness hearings in FY2004; 4070 in FY2003; 2961 in
FY2002; 3344 in FY2001; and 3603 in FY2000, Administrative Office of the United States Courts, Judicial Business
of the United States Courts, Table M-3 (2005); id. (2004); id. (2003); id. (2002); id. (2001), available on August 31,
2005 at http://www/uscourts.gov. The annual reports of the Administrative Office of the United States Courts indicate
that the statistics have not changed a great deal over the last quarter century, United States magistrates conducted 6865
material witness hearings in FY1981; 8221 in FY1980; 6481 in FY1978; 3230 in FY1977; and 2048 in FY1976,
Reports of the Proceedings of the Judicial Conference of the United States/Annual Report of the District of the
Administrative Office of United States Courts, Table M-3 (1981); id. (1980); id. (1978); id. (1977); id. (1976).
10 See e.g., In re Class Action Application of Habeas Corpus on Behalf of All Material Witnesses in the Western
District of Texas, 612 F.Supp. 904 (W.D. Tex. 1985); United States v. Nai, 949 F.Supp. 42 (D.Mass. 1996); United th
States v. Aguilar-Tamayo, 300 F.3d 562 (5 Cir. 2002); United States v. Lai Fa Chen, 214 F.R.D. 578 (N.D.Cal. 2003),
all involving illegal alien smuggling. Statistics from the Administrative Office of the United States Courts indicate that
an overwhelming majority of the material witness hearings conducted by United States magistrate judges occur in
judicial districts bordering Mexico:
District FY2004 FY2003 FY2002 FY2001 FY2000
S.D.Cal. 1210 936 721 601 728
D. Ariz. 808 495 295 313 597
D. N.Mex. 287 288 253 233 220
W.D. Tex. 503 406 474 533 566
S.D. Tex. 1423 1290 676 814 765
Administrative Office of the United States Courts, Judicial Business of the United States Courts, Table M-3, (2005); id.
seventy individuals, mostly Muslims, have been arrested and detained in abuse of the statute’s 11
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 12
issued by federal or state judges or magistrates. The statute applies to potential grand jury 13
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 14
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 15
investigation other than the grand jury. Moreover, it seems unlikely that a suspect, even the
(2004); id. (2003); id. (2002); id. (2001), United States Courts, Table M-3, (2005); id. (2004); id. (2003); id. (2002); id.
(2001), available on August 31, 2005 at http://www/uscourts.gov. The historical picture is much the same:
District FY1981 FY1980 FY1978 FY1977 FY1976
S.D.Cal. 2637 3636 2821 1095 755
D. Ariz. 603 691 978 770 366
D. N.Mex. 57 16 147 154 85
W.D. Tex. 651 734 1267 252 211
S.D. Tex. 2232 1946 2244 461 374
Reports of the Proceedings of the Judicial Conference of the United States/Annual Report of the District of the
Administrative Office of United States Courts, Table M-3 (1981); id. (1980); id. (1978); id. (1977); id. (1976).
11 151 Cong.Rec. S10296 (daily ed. Sept. 21, 2005), citing, Witness to Abuse: Human Rights Abuses under the Material
Witness Law since September 11, 17 HUMAN RIGHTS WATCH 1-3 (June 2005), available on September 5, 2005 at,
12 18 U.S.C. 3156(a)(1)(“As used in sections 3141-3150 of this chapter—(1) the term ‘judicial officer’ means, unless
otherwise indicated, any person or court authorized pursuant to section 3041 of this title, or the Federal Rules of
Criminal Procedure, to detain or release a person before trial or sentencing or pending appeal in a court of the United
States, and any judge of the Superior Court of the District of Columbia”). Section 3041 authorizes federal and state
judges and magistrates to issue arrest warrants and conduct bail proceedings in federal criminal cases.
13 United States v. Awadallah, 349 F.3d 42, 49-51 (2d Cir. 2003); United States v. Bacon, 449 F.2d 933, 939-41 (9th
Cir. 1971); contra, United States v. Awadallah, 202 F.Supp.2d 55, 61-79 (S.D.N.Y. 2002), rev’d, 349 F.3d 42 (2d Cir.
14 Aguilar-Ayala v. Ruiz, 973 F.2d 411, 413 (5th Cir. 1992); United States v. Nai, 949 F.Supp. 42, 44 (D. Mass. 1966).
15 United States v. Williams, 504 U.S. 36, 47 (1992)(“the grand jury . . . has not been textually assigned [by 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 16
evidence to the grand jury. On the other hand, a federal prosecutor ordinarily arranges for the 17
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 18
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 19
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 20
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 21
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 22
the grand jury’s power of inquiry.
Constitution] to any of the branches described in the first three Articles. It is a constitutional fixture in its own right. In
fact the whole theory of its function is that it belongs to no branch of the institutional government”).
16 Chandler v. Moscicki, 253 F.Supp.2d 478, 490 (W.D.N.Y. 2003), quoting, United States v. Williams, 504 U.S. 36, 52
(1992)(“a suspect under investigation by the grand jury does not have a right to testify or have exculpatory evidence
17 Rule 17(a) of the Federal Rules of Criminal Procedure states that federal criminal subpoenas are issued in blank by
the clerk of the court and filled in by “the party” requesting them. Nevertheless, federal prosecutors complete and see to
the service of most grand jury subpoenas, Lopez v. United States, 393 F.3d 1345, 1349 (D.C.Cir. 2005)(“the term
‘grand jury subpoena’ is in some respects a misnomer, because the grand jury itself does not decide whether to issue
the subpoena; the prosecuting attorney does”).
18 See e.g., United States v. Awadallah, 349 F.3d 42, 66 (2d Cir. 2003)(“in the case of a grand jury proceeding, we
think that a statement by a responsible official, such as the United States Attorney is sufficient”), quoting on the th
question of affidavit sufficiency under section 3144, United States v. Bacon, 449 F.2d 933, 943 (9 Cir. 1971).
19 United States v. Awadallah, 349 F.3d 42, 64 (2d Cir. 2003); United States v. Oliver, 683 F.2d 224, 231 (7th Cir.
1982); United States v. Bacon, 449 F.2d 933, 943 (9th Cir. 1971); United States v. Coldwell, 496 F.Supp. 305, 307
20 Neder v. United States, 527 U.S. 1, 16 (1999), quoting, United States v. Gaudin, 515 U.S. 506, 509
(1995)(materiality as an element of various federal fraud statutes). In the context of the prosecution’s failure to disclose
material exculpatory evidence, “the material standard Brady claims is met when the favorable evidence could
reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict,” Banks v.
Dretke, 540 U.S. 668, 698 (2004), quoting, Kyles v. Whitley, 514 U.S. 419, 435 (1995).
21 United States v. Awadallah, 349 F.3d 42, 66 (2d Cir. 2003); United States v. Oliver, 683 F.2d 224, 231 (7th Cir.
1982); United States v. Bacon, 449 F.2d 933, 943 (9th Cir. 1971).
22 Branzburg v. Hayes, 408 U.S. 665, 688 (1972)(“Because [the grand jury’s] task is to inquire into the existence of
possible criminal conduct and to return only well-founded indictments, its investigative powers are necessarily broad. It
is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited
narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether any
particular individual will be found properly subject to an accusation of crime”); United States v. R. Enterprises, Inc.,
498 U.S. 292, 297 (1991)(“The function of the grand jury is to inquire into all information that might possibly bear on
its investigation until it has identified an offense or has satisfied itself that none has occurred. As a necessary
consequence of its investigatory function, the grand jury paints with a broad brush. A grand jury investigation is not
fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if
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 23
indicate that impracticality may be shown by evidence of possible flight, or of an expressed 2425
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 26
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 27
issuance of an arrest warrant in all cases.
With limited variations, federal bail laws apply to material witnesses arrested under section 28
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
a crime has been committed”).
23 The government’s affidavit merely asserted “with respect to the probability of Nichol’s flight: Terry Nichols’
renunciation of his U.S. citizenship and his association with Tim McVeigh, a person involved in such a heinous crime,
indicates that his testimony cannot be secured through the issuance of a subpoena,” In re Material Witness Warrant, 77 th
F.3d 1277, 1278 (10 Cir. 1996), dismissing as moot an appeal from, United States v. McVeigh, 940 F.Supp. 1541,
1562 (D.Colo. 1996)(denial of a motion to quash a material witness arrest warrant on grounds of impracticality).
24 United States v. Coldwell, 496 F.Supp. 305, 307 (E.D. Okla. 1979)(As to impracticality, “the Dempewolf affidavit
shows that (a) Alston has refused to cooperate with law enforcement officials. . . (b) Alston has indicated that he will
not testify in this case unless the Oklahoma Bureau . . . satisfies certain conditions that . . . are impossible to meet; (c)
two unsuccessful attempts have been made to serve Alston with a subpoena through his attorney; and (d) Alston’s
attorney has indicated that Alston has expressed a definite unwillingness to cooperate with the government”).
25 United States v. Feingold, 416 F.Supp. 627, 628 (E.D.N.Y. 1976)(“We are not here dealing with a witness before a
grand jury where disregard of a subpoena would simply mean a continuation of the grand jury’s deliberations until an
appropriate warrant might be served and executed. Here, Feingold’s testimony is needed at Nashi’s trial. Once
commenced, the trial would continue on consecutive days, and Feingold’s testimony would be needed before the
Government rested its case. Since Feingold is presumably in California, for the Government to have to defer its arrest
warrant until he ignored a subpoena to attend the trial will preclude his testifying altogether. The . . . affidavit showed
unsuccessful attempts to serve Feingold with a subpoena either through his California attorney or on seven different
days at Feingold’s home”).
26 Perhaps because the point seems too obvious for dispute or discussion, none of the reported federal cases appear to
have held the impracticality requirement can be satisfied by evidence that a material witness, who is a foreign national
illegally present in this country, may be overseas and thus beyond the reach of the court’s subpoena when his testimony
is required. The number of foreign material witnesses arrested and held for the trial of immigration prosecutions
indicate the government has experienced little difficulty satisfying the impracticality requirement in such cases, see thth
e.g., Torres-Ruiz v. United States District Court, 120 F.3d 933 (9 Cir. 1997); United States v. Allie, 978 F.2d 1401 (5
Cir. 1992); United States v. Nai, 949 F.Supp. 42 (D.Mass. 1996); United States v. Huang, 827 F.Supp. 945 (S.D.N.Y.
27 Arnsberg v. United States, 757 F.2d 971, 976-77 (9th Cir. 1985)(“In the district court’s view, the difficulties
encountered by agents . . . in attempting to serve Arnsberg did not establish probable cause for believing that it would
be impracticable to secure Arnsberg’s presence by subpoena. . . . The facts do not show that Arnsberg 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 Arnsberg’s attendance could not be secured by subpoena”).
28 18 U.S.C. 3144 (“. . .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 . . .”).
counsel.29 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 30
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 3132
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 33
adequate to ensure his later appearance to testify. If neither word nor bond nor conditions will 34
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 35
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 36
corresponding federal deposition rule permits the witness, the government, or the defendant to 37
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 th
his deposition and prompt release,” Aguilar-Ayala v. Ruiz, 973 F.2d 411, 413 (5 Cir. 1992).
29 In re Class Action Application for Habeas Corpus on Behalf of All Material Witnesses in Western District of Texas,
612 F.Supp. 940, 943-45(W.D.Tex. 1985); 18 U.S.C. 3142(f); 18 U.S.C. 3006A(a)(1)(G).
30 18 U.S.C. 3142(a)(“Upon the appearance before a judicial officer of a person charged with an offense, the judicial
officer shall issue an order that, pending trial, the person be—(1) released on personal recognizance or upon execution
of an unsecured appearance bond, under subsection (b) of this section; (2) released on a condition or combination of
conditions under subsection (c) of this section; (3) temporarily detained to permit revocation of conditional release,
deportation, or exclusion under subsection (d) of this section; or (4) detained under subsection (e) of this section.”).
31 18 U.S.C. 3142(b)(“The judicial officer shall 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, subject to the condition that the
person not commit a Federal, State, or local crime during the period of release, unless the judicial officer determines
that such release will not reasonably assure the appearance of the person as required or will endanger the safety of any
other person or the community”).
32 United States v. Awadallah, 349 F.3d 42, 63 n.15 (2d Cir. 2003), citing, S.Rep.No. 98-225, at 28 no.90 (1983)(“Of
course a material witness is not to be detained on the basis of dangerousness”); United States v. Nai, 949 F.Supp. 42, 44
(D.Mass. 1996)(“a material witness may be detained only if the judicial officer finds by a preponderance of the
evidence, that the material witness poses a risk of flight”).
33 18 U.S.C. 3142(c).
34 18 U.S.C. 3142(e).
35 United States v. Awadallah, 349 F.3d 42, 63 n.15 (2d Cir. 2003); 18 U.S.C. 3142(g).
36 F.R.Crim.P. 15(a)(2)(“A witness who is detained under 18 U.S.C. § 3144 may request to be deposed by filing a
written motion and giving notice to the parties. The court may then order that the deposition be taken and may
discharge the witness after the witness has signed under oath the deposition transcript”).
37 F.R.Crim.P. 15(a)(1)(“A party may move that a prospective witness be deposed in order to preserve testimony for
trial. The court may grant the motion because of exceptional circumstances and in the interest of justice. If the court
orders the deposition to be taken, it may also require the deponent to produce at the deposition any designated material
that is not privileged, including any book, paper, document, record, recording, or data.”).
Other courts seem to agree.38 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 39
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 40
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 41
the interest of justice,” F.R.Crim.P. 15(a)(1). Nevertheless, the fact that a witness is being 42
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 43
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 44
process have been accommodated.
The government must periodically report to the court on the continuing justification for holding 45
an incarcerated material witness. While a material witness is being held in custody he is entitled
38 Torres-Ruiz v. United States District Court, 120 F.3d 933, 935 (9th Cir. 1997); United States v. Nai, 949 F.Supp. 42,
44 (D. Mass. 1996); United States v. Huang, 827 F.Supp. 945, 948 (S.D.N.Y. 1993).
39 United States v. Huang, 827 F.Supp. 945, 950-52 (S.D.N.Y. 1993); cf., United States v. Valenzuela-Bernal, 458 U.S.
858, 872-73 (1982)(The government may deport “illegal-alien witnesses upon the Executive’s good-faith determination
that they possess no evidence favorable to the defendant in a criminal prosecution. The mere fact that the government
deports such witnesses is not sufficient to establish a violation of the Compulsory Process Clause of the Sixth
Amendment or the Due Process Clause of the Fifth Amendment. A violation of these provisions requires some showing
that the evidence lost would be both material and favorable to the defense”).
40 Torres-Ruiz v. United States District Court, 120 F.3d 933, 936 (9th Cir. 1997).
41 United States v. Allie, 978 F.2d 1401, 1404 (5th Cir. 1992); United States v. Lai Fa Chen, 214 F.R.D. 578, 579
42 United States v. Fai Fa Chen, 214 F.R.D. 578, 580-81 (N.D.Cal. 2003)(Other courts faced with a motion brought by
the government to depose material witnesses have considered their detained status when finding exceptional th
circumstances [citing United States v. Allie, 978 F.2d 1401 (5 Cir. 1992) and United States v. Rivera, 859 F.2d 1204 th
(4 Cir. 1988). . . Although detention itself does not amount to a per se ‘exceptional circumstance’ under Rule 15(a)(1),
it would be the rare case when it would not”). In Rivera, the court observed that “[i]f the court had denied the motion
for depositions, these alien witnesses would have been incarcerated for more than three months, even though they were
neither indicted nor convicted of a crime. The appellant was both indicted and convicted on nine counts, and he spent
less time incarcerated than did these witnesses, who were deposed and deported,” 859 F.2d at 1207.
43 Compare, United States v. Lopez, 918 F.2d 111, 112-114 (10th Cir. 1990)(depositions should not have been taken),
and, United States v. Allie, 978 F.2d 1401, 1403-405 (5th Cir. 1992)(depositions were validly taken).
44 United States v. Allie, 978 F.2d 1401, 1406-408 (5th Cir. 1992); United States v. Eufracio-Torres, 890 F.2d 266, 268-
71(10thCir. 1989); United States v. Rivera, 859 F.2d 1204, 1207-209 (4th Cir. 1988); United States v. Huang, 827
F.Supp. 945, 947-52 (S.D.N.Y. 1993).
45 F.R.Crim.P. 46(h)(2)(“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)”). It is unclear whether and to what extent this safeguard can be evaded by
moving the witness from one district to another, consider, United States v. Awadallah, 436 F.3d 125, (2d Cir.
2006)(“[O]n September 21, Awadallah was arrested on a material witness warrant . . . and detained without bailed
based on judicial findings that he possessed information material to the grand jury’s investigation of the September 11
to the daily witness fees authorized for attendance at judicial proceedings.46 Upon his release, the
court may also order that he be provided with transportation and subsistence to enable him to 47
return to his place of arrest or residence. Should he fail to appear after he has been released from 48
custody he will be subject to prosecution, an offense which may be punished more severely if 49
his failure involves interstate or foreign travel to avoid testifying in a felony case.
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
attacks. Also on September 21, Awadallah was taken from the FBI office to the San Diego Metropolitan Correctional
Center (‘MCC’) [in the Southern District of California], where he was held until September 27. Subsequently, he was
moved to the San Bernardino County Jail [in the Central District of California] and then to a federal facility in
Oklahoma City. On October 1, she was moved to the New York City MCC where he was held in solitary
46 28 U.S.C. 1821 (“. . . (b) A witness shall be paid an attendance fee of $40 per day for each day’s attendance. . . (d) . .
.(4) When a witness is detained pursuant to section 3144 of title 18 for want of security for his appearance, he shall be
entitled for each day of detention when not in attendance at court, in addition to his subsistence, to the daily attendance
fee provided by subsection (b) of this section”).
47 18 U.S.C. 4282 (“On the release from custody of . . . a person held as a material witness, the court in its discretion
may direct the United States marshal for the district wherein he is released, pursuant to regulations promulgated by the
Attorney General, to furnish the person so released with transportation and subsistence to the place of his arrest, or, at
his election, to the place of his bona fide residence if such cost is not greater than to the place of arrest”).
48 18 U.S.C. 3146 (“(a) Offense.—Whoever, having been released under this chapter [relating to bail] knowingly—(1)
fails to appear before a court as required by the conditions of release . . .shall be punished as provided in subsection (b)
of this section. (b) Penalties—(1) The punishment for an offense under this section is . . . (B) if the person was released
for appearance as a material witness, a fine under this chapter or imprisonment for not more than one year, or both”).
49 18 U.S.C. 1073 (“Whoever moves or travels in interstate or foreign commerce with intent either . . . to avoid giving
testimony in any criminal proceedings in such place in which the commission of an offense punishable by death or
which is a felony under the laws of such place, is charged shall be fined under this title or imprisoned not more than
five years, or both. . .”).
on false, unreliable and irrelevant information. By evading the probable cause requirement 50
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 51
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 52
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
50 Material Witness Provisions of the Criminal Code and the Implementation of the USA PATRIOT Act: Section 505
That Addresses National Security Letters, and Section 804 That Addresses Jurisdiction Over Crimes Committed at U.S.
Facilities Abroad: Hearing Before the Subcomm. on Crime, Terrorism and Homeland Security of the House Comm. on thst
the Judiciary (House Hearings), 109 Cong., 1 Sess. 26 (2005)(statement of Gregory T. Nojeim, American Civil
Liberties Union), available on March 7, 2006 at htpp://judiciary.house.gov/media/pdfs/nojeim052605.pdf; see also,
House Hearings, 42 (statement of Shayana Kadidal, Center for Constitutional Rights)(“Since September 11, the Bush
Administration has reinvented the meaning of the material witness statute, and has misused it to preventively detain
criminal or terrorist suspects against whom it cannot show probable cause of criminal activity while it carries out its
investigation and builds its criminal case. This expansive exercise of executive power under the material witness statute
has led to serious violations of constitutional and international law by: (1) allowing for arbitrary and indefinite
detention upon a minimal showing; (2) limiting the ability of the press and the public to monitor the actions of our
executive; and (3) facilitating racial and religious profiling and harsh treatment of suspected terrorists”), available on
March 7, 2006 at htpp://judiciary.house.gov/media/pdfs/kadidal052605.pdf.
51 House Hearings, 6-8 (statement of Chuck Rosenberg, United States Department of Justice), available on March 7,
2006 at htpp://judiciary.house.gov/media/pdfs/kadidal052605.pdf.
52 Executive Office of the President, Office of Management and Budget, Statement of Administration Policy: H.R.
3199—USA PATRIOT and Terrorism Prevention Reauthorization Act of 2005, available on March 7, 2006, at
forthcoming.53 The rule does not prohibit disclosure by grand jury witnesses of matters occurring 54
during their appearance before the panel. There is some authority for the proposition that the 55
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 56
who assist the grand jury. In addition, from time to time, Congress has created several other 57
exceptions to the rule’s general prohibitions either by amendment of the Rule, or by a provision 58
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 59
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 60
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 61
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.
53 United States v. John Doe, Inc., 481 U.S. 102, 109 n.5 (1983); Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S.
211, 219 (1979).
54 F.R.Crim.P. 6(e)(2)(“(A) No obligation of secrecy may be imposed on any person except in accordance with Rule
6(e)(2)(B). (B) Unless these rules provide otherwise, the following persons must not disclose a matter occurring before
the grand jury; (i) a grand juror; (ii) an interpreter; (iii) a court reporter; (iv) an operator of a recording device; (v) a
person who transcribes recorded testimony; (vi) an attorney for the government; or (vii) a person to whom disclosure is
made under Rule 6(e)(3)(A)(ii) or (iii)[relating to government attorneys and other personnel assisting in the grand jury
investigation]”); United States v. Sells Engineering, Inc., 463 U.S. 418, 425 (1983).
55 In re Report & Recommendation of June 5, 1972 Grand Jury, 370 F.Supp. 1219, 1227-230 (D.D.C. 1974)(permitting
disclosure of grand jury material relevant to an impeachment inquiry to the House Judiciary Committee); In re Grand
Jury Investigation of Ven-Fuel, 441 F.Supp. 1299, 1320-304 (M.D.Fla. 1997)(permitting disclosure of grand jury
material to a House legislative subcommittee).
56 United States v. Sells Engineering, Inc., 463 U.S. 418, 429 n.11 (. . . the intent of the Rule is that every attorney
(including a supervisor) who is working on a prosecution may have access to grand jury materials, at least while he is
conducting criminal matters. . .”).
57 E.g., section 203(a) of USA PATRIOT Act, 115 Stat. 279 (2001)(amending Rule 6(e) to permit foreign intelligence
information sharing with various federal officials, see F.R.Crim.P. 6(e)(3)(D)).
58 E.g., 18 U.S.C. 3322 (authorizing disclosure in conjunction with forfeiture and other civil proceedings of matters
occurring before the grand jury involving banking offenses).
59 Cf., Illinois v. Abbott & Associates, Inc., 460 U.S. 557, 565-73 (1983)(Attorney General’s statutory obligation to
share certain investigative with state authorities did not create an exception to Rule 6(e) requirements); In re North, 16
F.3d 1234, 1243 (D.C.Cir. 1994) (Independent Counsel’s statutory reporting obligation did not excuse noncompliance
with Rule 6(e) requirements).
60 18 U.S. 687 (1940 ed.); 28 U.S.C. 2072, 2074.
61 28 U.S.C. 2074.
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 62
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 63
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
S. 1739, introduced by Senator Leahy, rewrites section 3144.64 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
• 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);
62 In re Cudahy, 294 F.3d 947, (7th Cir. 2002)(“The purpose of Rule 6(e) is to protect the confidentiality of the grand
jury’s hearings and deliberations, and the term ‘matters occurring before the grand jury’ is interpreted accordingly. See th
Martin v. Consultants & Administrators, Inc., 966 F.2d 1078, 1097 (7 Cir. 1992)(‘the general rule is that Rule 6(e)’s
nondisclosure requirement applies to anything that may reveal what occurred before the grand jury’); In re Sealed Case
No. 99-3091, 192 F.3d 995, 1001(D.C.Cir. 1999)(the phrase ‘matters occurring before the gand jury’ encompasses ‘not
only what has occurred and what is occurring, but also what is likely to occur, including the identities of witnesses or
jurors, the substance of testimony as well as actual transcripts, the strategy or direction of the investigation, the th
deliberations or questions of jurors, and the like’); United States v. Phillips, 843 F.2d 438, 441 (11 Cir. 1988)(‘the
term “matters occurring before a grand jury” has been defined to include anything that will reveal what transpired
during the grand jury proceedings’)”).
63 5 U.S.C.App.III §8E(b)(2).
64 151 Cong. Rec. S10298-299 (daily ed. Sept. 21, 2005)(text); the text of proposed new section 3144 is appended.
• 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,”
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).”
(a) Arrest of Material Witness—
(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 that—(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 subpoena—(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 Witness—
(1) A warrant issued under subsection (a) shall—(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 officer—(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 Appearance—
(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 be—(A) in the district of arrest; or (B) in an adjacent district if—(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 shall—(A) inform a
material witness of—(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 Detention—
(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
(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 exceed—(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 detained—
(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 held—(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.
(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
(2) A report required under paragraph (1) shall include—(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).
Alabama: ALA.CODE §§15-11-13 to 15-11-14; Nevada: NEV.REV.STAT. §178.494;
Alaska: ALASKA STAT. §12.30.050; New Hampshire: N.H.REV.STAT.ANN. §597:6-d;
Arizona: ARIZ.REV.STAT.ANN. §13-4081 to 13-4084; New Jersey:N..J.STAT.ANN. §2C:104-1 to 104-9;
Arkansas: ARK.CODE ANN. §§16-85-508, 16-85-208, 16-New Mexico: N.MEX.STAT.ANN. §31-3-7;
85-210, 16-85-211; New York: N.Y. CRIMINAL PROCEDURE LAW §§620.10 to
California: CAL. PENAL CODE §§878-883; 620.80;
Colorado: COLO.R.CRIM.P. 15(b); North Carolina: N.C.GEN.STAT. §15A-803;
Connecticut: CONN.GEN.STAT.ANN. §54-82j, 54-82k; North Dakota: N.D.R.Crim.P. 46;
Delaware: DEL.CODE ANN. tit.11 §5911; Ohio: OHIO REV.CODE ANN. §§2937.16 to 2937.18;
Florida: FLA.STAT.ANN.§§902.15, 902.17; Oklahoma: OKLA.STAT.ANN. tit.22 §§270-275;
Georgia: GA.CODE §§17-7-26, 17-7-27; Oregon: ORE.REV.STAT. §§136.608 to 136.614;
Hawaii: HAWAII REV.STAT. §§835-1 to 835-8; Pennsylvania: Pa.R.Crim.P. 522;
Idaho: IDAHO CODE §§19-820 to 19-824; Rhode Island: R.I.Super.Ct. R.Crim.P.46, R.I.D.Ct.
Illinois: ILL.COMP. LAWS ANN. ch.725 §5/109-3; R.Crim.P. 46;
Iowa: IOWA CODE ANN. §§804.11, 804.23; South Carolina: S.C. CODE ANN. §17-7-230, 17-7-650,
Kansas: KAN.STAT.ANN. §22-2805; 17-5-140;
Kentucky: Ky.R.Crim.P. 7.06; South Dakota: S.D.COD.LAWS ANN. §23A-43-18;
Louisiana: LA.REV.STAT.ANN. §15:257; Tennessee: TENN.CODE ANN. §§38-5-114; 40-10-107 to
Maine: ME.REV.STAT.ANN. tit.15 §1104; 40-10-112;
Maryland: Md.Cts. & Jud. Pro. Code §9-203, Md.Rules, Texas: TEX.CODE OF CRIM.PRO.ANN. arts. 24.14, 24.15,
R4-267; 24.23 - 24.27;
Massachusetts:MASS.GEN.LAWS ANN. ch.276 §§45-52; Utah: UTAH R.CRIM.P. R.7, UTAH R.JUV.P. 59;
Michigan: MICH.COMP.LAWS ANN. §§765.29, 765.30, Vermont: VT.STAT.ANN. §§6605, 7551, 7554;
767.35; Virginia: VA. CODE ANN. §19.2-127;
Minnesota:MINN.STAT.ANN.§§629.54, 629.55; Washington: Wash.Super.Ct.Crim.R. 4.10;
Mississippi: MISS.CODE ANN. §99-15-7; West Virginia: W.VA.CODE ANN. §§62-1C-15, 62-6-4;
Missouri: MO.ANN.STAT. §544.420; Wisconsin: WIS.STAT.ANN. §969.01;
Montana: MONT.CODE ANN. §46-11-601; Wyoming: WYO.STAT. §5-6-206.
Nebraska: NEB.REV.STAT. §29-507 to 29-508.02;
65 In addition, forty-nine states have adopted the Uniform Act to Secure the Attendance of Witnesses From Without a
State in Criminal Proceedings in one form or another, 11 U.L.A. 1 (2004 Supp.).
Bascuas, The Unconstitutionality of “Hold Until Cleared”: Reexamining Material Witness th
Detentions in the Wake of the September 11 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
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
Studnicki & Apol, Witness Detention and Intimidation: The History and Future of Material
Witness Law, 76 ST. JOHN’S LAW REVIEW 483 (2002).
The Application of Material Witness Provisions: A Case Study—Are Homeless Material Witnesses
entitled to Due Process and Representation by Counsel? 36 VILLANOVA LAW REVIEW 597
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
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).
Witnesses—Imprisonment of the Material Witness for Failure to Give Bond, 40 NEBRASKA LAW
REVIEW 503 (1961).
Senior Specialist in American Public Law