When the FBI Comes Calling…®
When the FBI Comes Calling…®
You may be held as a:
Material Witness (18 U.S.C. § 3144)
Unlike nearly every other area of the law, the federal material witness statute effectively allows detention of an individual without charging him with a crime. It is a process which dates back to the mid-16th century British common law and was first established in the United States by the 1789 Judiciary Act, and stands today as amended by the 1984 Bail Reform Act. Essentially, one is held when he is believed to be a critical witness to a criminal investigation and are either considered a flight risk or may for some other reason be incapable of or unwilling to attend to the needs of the investigators. The statute is most frequently invoked, particularly within the post-September 11th climate, as a means to detain a suspect without affording the same rights guaranteed to those charged with having committed a federal crime. In fact, of the 57 reported material witness detentions relative to terrorism, 27 faced either faced criminal charges themselves or were designated unlawful enemy combatants. Perhaps most disconcerting about the statute, aside from the evident ability of law enforcement to circumvent one's habeas corpus rights, is that such detention could conceivably be indefinite.
In order for the government to hold one under the statute, two elements must be met:
1. That the witness be material in a criminal proceeding;
2. It is probably (probable cause) impracticable for that witness to be secured by subpoena.
So how have the courts interpreted the Material Witness status?
A. Probable cause exists that the witness cannot be secured by subpoena only if he is a fugitive or likely would flee the jurisdiction, and not simply when he insists upon refusing to appear before a grand jury until personally served. Arnsberg v United States, 757 F.2d 971 (9th Cir. 1984)
B. Counsel may be appointed or hired to represent those held as material witnesses. In re Class Action Application for Habeas Corpus, 612 F. Supp. 940 (W.D.T.X. 1985)
C. Except for those material witnesses whose identities have been sealed by court order, the government is obliged to make available the names of those detained under the statute. Ctr. for Nat'l Sec. Studies v. United States DOJ, 215 F. Supp. 2d 94 (D.D.C. 2002).
When one is detained under the federal material witness statute, particularly when the investigation relates to national security, the detention may be followed by formal charges. The most common of those charges revolve around Terrorism, NBC Weapons, Subversion, Sabotage, Treason, or Espionage, though it could include something less significant like a charge under the False Statements statute.