Charles Doyle Senior Specialist in American Public Law
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 been taken.
Legislative efforts in the 109th Congress to amend the provisions never fully developed. Witnesses at Congressional oversight hearings did 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 would have required periodic reviews 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, as introduced, would have rewritten the federal statute, setting detention time limits and raising evidentiary standards for arrest and detention among other things. The 109th Congress adjourned without further action on the material witness proposals, and subsequent Congresses passed without renewed legislative interest.
The Supreme Court resolved on other grounds a case which might have been used as a vehicle to address constitutional challenges to the statute or use, Ashcroft v. al-Kidd, 131 S.Ct. 2074 (2011). Concurring opinions there, however, suggest that several members of the Court consider the matter an open question.
A list of citations to comparable state statutes is appended.
The report appeared in an earlier version as CRS Report RL33077, Arrest and Detention of Material Witnesses: Federal Law In Brief, by Charles Doyle.
Document available via e-mail as a pdf file or in paper form.
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