Arrest and Detention of Material Witnesses: A Sketch

CRS Report for Congress
Arrest and Detention of Material Witnesses:
A Sketch
Charles Doyle
Senior Specialist
American Law Division
Summary
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
[including a grand jury 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.
In response to objections that the authority had been misused, H.R. 3199 as
reported by the House Judiciary Committee required Justice Department reports on use
of the authority in a grand jury context. The provision was dropped before the bill was
taken up. The version sent to the President after passage had no such provision.
S. 1739 would rewrite section 3144, among other things, establishing explicit and
more demanding standards for arrest and detention and imposing explicit time
limitations on detention.
This is an abridged version of CRS Report RL33077, Arrest and Detention of
Material Witnesses: Federal Law in Brief, by Charles Doyle, without footnotes, most
citations to authority, or appendices.
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. 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 the federal statute 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”

Congressional Research Service ˜ The Library of Congress

and that, “[t]he constitutionality of this [federal material witness] statute apparently has
never been doubted.”
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: 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.” 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.
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.
Section 12 of H.R. 3199 as reported by the House Judiciary Committee 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 opposes 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.” 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 or in the conference bill
sent to the President.
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 five 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 five 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).”