Material Witnesses

A material witness is an individual who has unique information about a crime, beneficial to defense or prosecution. Without this person to provide testimony, the matter may not be resolved. The term is most often used when there is a concern that this witness may flee or otherwise become unavailable to testify and the government seeks to have the witness held against his or her will to ensure the presence at trial or grand jury. While many states have respective material witness statutes, the current federal material witness statute went through its biggest revision as a part of the Bail Reform Act of 1984 and is codified at Section 3144 of Title 18 of the U.S. Code.

Generally, in order for the government to obtain a material witness warrant, it is necessary that a party demonstrate that the witness has information ‘‘material’’ to a criminal proceeding—whether at trial or grand jury proceeding—and that it may become impracticable to secure the witness’s presence at the proceeding by normal subpoena. Once arrested, a material witness may be detained for a reasonable period, until his testimony can be secured. Material witnesses who are to be considered for detention are entitled to certain basic procedural safeguards which include the right to counsel, notice of the allegations relied upon for detention, a hearing before a magistrate judge, the opportunity to be heard in person and to present witnesses and documentary evidence, and written findings by the judge as to the reason for any adverse decision detaining the witness.

While one of the cornerstones of the American justice system is the requirement that a person be neither subjected to an unreasonable seizure nor deprived of liberty without due process of law, a witness could conceivably be held indefinitely while a grand jury or successive grand juries investigated a case. The Supreme Court has stated that a statute that permits indefinite detention of people, except in such cases as a criminal conviction or a finding that a person poses a threat to himself or others as the result of mental illness, would raise a serious constitutional problem under the due process clause (Zadvydas v. Davis, 533 U.S. 678, 690, 2001). With the attacks on the United States on September 11, 2001, material witness laws have been brought to the forefront as an investigatory tool for the government; it is anticipated that further litigation and legislation will continue to grow from this once rarely used law.

ROBERT DON GIFFORD

References and Further Reading

• Carlson, Ronald L., Jailing the Innocent: The Plight of the Material Witness, Iowa Law Review 55 (1969–1970): 1.
• Studnicki, Stacey M., and John P. Apol, Witness Detention and Intimidation: The History and Future of Material Witness Law, St. John’s Law Review 76 (2002): 483.

Cases and Statutes Cited

• Zadvydas v. Davis, 533 U.S. 678, 690 (2001)18 U.S.C. 3144
• The First Judiciary Act of Sept. 24, 1789, ch. 20 }} 30, 33, 1 Stat. 73