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With the government roundup of hundreds of individuals following the Sept. 11 terrorist attacks, more attention is being directed to the laws governing arrest and detention of material witnesses. While some of the Sept. 11 detainees are being held on immigration violations or criminal charges, others are detained under material witness warrants. For these individuals, the government has yet to establish their criminal involvement in terrorist activities. Nonetheless, federal law allows them to be incarcerated as potential witnesses until they are questioned and used as grand jury witnesses or criminal trial witnesses of other suspects. They are in legal limbo. U.S. MATERIAL WITNESS LAWS HAVE THEIR ROOTS IN THE 1500s Material witness laws have existed in the United States since the First Judiciary Act of 1789. American laws governing material witnesses are based on English statutes dating back to the 1500s, which created penalties for persons who refused to testify after being served with process. In 1948, Congress repealed two statutory provisions in federal criminal laws that provided the authority to arrest material witnesses. From then until 1984, when the Bail Reform Act was amended, the courts pieced together provisions of the federal criminal rules to create a basis for arresting material witnesses. Today, the arrest and detention of material witnesses is governed by �U.S.C. 3144. Sec. 3144 provides: “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 [order him detained].” Under the terms of the current law (unlike provisions for detention of lawful aliens under the new anti-terrorism legislation), the government can only detain a material witness if a judge determines that there is probable cause to believe that the detained individual has material evidence regarding a criminal offense. Persuading a court not to detain a material witness is a very difficult task. Judges are overwhelmingly inclined to authorize the arrest of material witnesses. In the typical case calling for the detention of material witnesses, there is no question that the person being held does have pertinent testimony for the trial and is likely to flee unless detained for the proceedings. For example, material witness warrants are commonly used in alien smuggling and narcotics conspiracy cases where a witness’s presence at the scene of the crime establishes that the witness has material knowledge about the offenses. See, e.g., U.S. v. Lin, 143 F. Supp. 2d 783 (E.D. Ky. 2001) (employing illegal aliens); U.S. v. Mercedes, 2001 WL 1131400 (D.P.R. 2001) (transporting illegal aliens), U.S. v. Pelt, 1992 U.S. Dist. Lexis 18757 (D. Kan. 1992) (narcotics conspiracy). GOVERNMENT’S TRUMP CARD IS THE FILING OF CRIMINAL CHARGES Additionally, in those cases where a material witness may have grounds for seeking release, the government can often trump his efforts by filing criminal charges against the witness and thereby mooting any challenge to the material witness warrant. For example, a material witness warrant issued in 1995 was used to hold Terry Lynn Nichols in connection with his involvement in, or knowledge about, the bombing of the Murrah Federal Building in Oklahoma City. Nichols challenged the material witness warrant. He claimed there had been no credible showing that he would not comply with a subpoena to testify. Even though the government had claimed that Nichols had tried to elude the authorities, he had in fact voluntarily appeared at his hometown police department to answer questions once he knew the authorities were looking for him. The court denied Nichols’ challenge, not because it was without merit, but because it had been rendered moot. The government was able to moot Nichols’ challenge to the material witness warrant by filing a criminal complaint charging malicious destruction of government property. Thus, it is an uphill battle for a material witness to challenge the propriety of a material witness warrant. The alternative — a criminal complaint — can be even worse. Likewise, it is often an uphill battle for material witnesses to obtain bond. Material witnesses are entitled to release only if they can demonstrate that their “testimony can be adequately secured by deposition,” and that “further detention is not necessary to prevent a failure of justice.” �U.S.C. 3144; Fed. R. Crim. P. 15. Rule 15 (a) governs the taking and use of depositions in federal criminal cases. It provides that the testimony of a prospective witness may be taken and preserved for use at trial when there are “exceptional circumstances.” Judges vary in their attitudes toward allowing such a deposition and the attendant release of material witnesses. Many courts are reluctant to use depositions and release material witnesses because they fear jeopardizing the defendant’s Sixth Amendment right of confrontation at trial. Other courts, however, issue standing orders that require regular examination of the reasonableness of a witness’s continued detention in light of the availability of a witness deposition. The use of such standing orders has received mixed reviews by appellate courts. Some appellate courts have struck them down as being contrary to the stated approach of Rule 15 (a) that requires an individual determination that there are “exceptional circumstances” requiring the material witness’s release. See, e.g., U.S. v. Fuentes-Galindo, 929 F.2d 1507 (10th Cir. 1991). Other courts, however, are more accepting of these orders and uphold their use so long as a court determines in the individual case that a deposition adequately secures the witness’s testimony and will not result in a failure of justice. See, e.g., U.S. v. Allie, 978 F.2d 1401 (5th Cir. 1992). The best strategy for a material witness to seek release is to provide strong assurance to the court that the witness will be available for any subpoenaed proceedings, grand jury or trial. The witness must also offer to submit to a videotaped deposition, as well as to explain to the court why the overall interests of justice in a case will not be jeopardized by the witness’s release. In routine cases, courts may be open to these arguments when the witness can show that lengthy detention has worked an exceptional hardship on the witness or the witness’s family. See, e.g., Torres-Ruiz v. U.S. Dist. Ct., 120 F.3d 933 (9th Cir. 1997) (unpublished). In more serious cases, however, such as a massive terrorism prosecution, it will be an uphill battle to obtain a witness’s release. In fact, it is not uncommon for material witnesses to make their situations worse by lying to investigators and the grand jury, thereby becoming the subjects of criminal complaints for perjury and obstruction of justice. Thus, it is critical that a material witness have the assistance of counsel as early as possible. A CONSTITUTIONAL AND STATUTORY RIGHT TO COUNSEL A material witness has both a constitutional and statutory right to counsel. See In re Class Action Application for Habeas Corpus, 612 F. Supp. 940 (W.D. Texas 1985); 28 U.S.C. 3142. Sometimes, the best that counsel can do is to ensure that the witness is housed in a detention — rather than a correctional — facility. However, counsel can sometimes convince prosecutors that the witness will be more cooperative if not incarcerated. When necessary, the material witness counsel can also help persuade defense counsel to acquiesce in the release of the material witness. There are few consolations to being a material witness. Certainly, one consolation is that being a material witness is still better than being a criminal defendant, even though it involves a temporary restriction of the witness’s liberty. Second, material witnesses, unlike criminal defendants, are entitled to compensation for their period of confinement if they are lawfully in the United States. Unfortunately, however, the amount of this compensation is ludicrously low. In Hurtado v. U.S., 410 U.S. 578 (1973), the Supreme Court held that $1 per day was a constitutionally sufficient amount of pay. Since that case, Congress has raised the amount to $40 per day. See �U.S.C. 1821. Material witnesses live a life in limbo. Even if they are here legally, they may be held in custody if the court deems them a flight risk. If they are here illegally, they do not have the right to escape detention by immediate deportation. Rather, their needs are superseded by those of the criminal justice system. Especially for material witnesses caught up in the war against terrorism, it is unlikely that there will be a quick way out of their predicament. Laurie L. Levenson is a professor of law, William M. Rains fellow and director of the Center for Ethical Advocacy at the Loyola Law School in Los Angeles.

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