Witness to Abuse - Human Rights Watch

eflects a compromise between an individual’s right to liberty and the administration of a
fair and workable criminal justice system.
The ability to arrest a witness under federal law dates back to the eighteenth century. 6 It
is based on the duty of citizens to disclose relevant knowledge in criminal proceedings.
However, the authority to arrest a material witness is the most onerous method
Congress has set forth to secure the appearance of a witness at a criminal proceeding.
Most commonly the government will obtain a subpoena 7 to secure the testimony; if a
witness fails to comply, the court may jail or fine a witness for being in contempt of
court 8 or issue an “attachment” to arrest the witness. 9 In addition, the court may issue a
writ or summons directing a witness to appear under threat of jail for failing to appear. 10
The Supreme Court has acknowledged the importance of the authority to arrest a
witness to ensure his appearance in those exceptional circumstances when other
mechanisms, such as contempt penalties, are “too slight to deter the witness from
absenting himself.” 11
While Congress has long authorized the arrest of witnesses, it has consistently put
restrictions on jailing witnesses, historically permitting detention only if a witness did not
provide assurances to a judge that he would testify. 12 To further limit the detention of
witnesses, Congress added the requirement that witnesses should be deposed in lieu of
detention whenever possible. 13
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.
6
Bacon v. United States, 449 Federal Reporter, Second Series (F.2d) 933, 938-39 (Ninth Circuit (Cir.) 1971).
7
See, e.g., Blackmer v. United States, 284 U.S. 421 (1932).
8
18 U.S.C. § 402; 19 U.S.C. § 3691.
9
See, e.g., Lyons v. Lyons, 279 Alabama 329, 331, 185 Southern Reporter, Second Series (So.2d) 121, 122- 23
(1966).
10
28 U.S.C. § 1826. Witnesses are also subject to the Federal Fugitive Justice Act, which makes it a crime for a
witness to flee a jurisdiction to avoid giving testimony. 18 U.S.C. § 1073 (2000).
11
Barry v. United States ex relatione Cunningham, 279 U.S. 597, 618 (1927) (citation omitted).
12
Ricardo J. Bascuas, “The Unconstitutionality of ‘Hold until Cleared’: Reexamining Material Witness Detentions
in the Wake of the September 11th Dragnet,” Vanderbilt Law Review, April 2005, available online at:
http://ssrn.com/abstract=603001, accessed on June 17, 2005.
13
In 1984, Congress amended the material witness law to expressly allow judges to order the detention of
material witnesses in limited circumstances while still providing 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.” 18 U.S.C. § 3144.
The Senate Appropriations Committee, which was responsible for the amendment, “stresse[d] that whenever
possible, the deposition of such witnesses should be obtained so that they may be released from custody.”
United States Senate Reporter (S. Rep.) No. 98-225, 1984 U.S.C.C.A.N. 3182 (Aug. 4, 1983).
11 HUMAN RIGHTS WATCH VOL. 17, NO. 2(G)