Witness to Abuse - Human Rights Watch

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Overview of the Material Witness Law Under the material witness law, the federal government is authorized to arrest a witness to secure his testimony in a criminal proceeding. 14 To obtain a witness arrest warrant, the Department of Justice must file an application with a federal district court establishing that (1) an individual has information that is material to a criminal proceeding, and (2) it is impracticable for the government to secure the witness’s presence at a criminal proceeding by a subpoena. In some courts, the government may establish that a material witness has relevant information to a grand jury proceeding simply by submitting a sworn statement from a government official. 15 If the government establishes grounds to believe that the witness has relevant information and will flee if served with a subpoena, the court may authorize the warrant. The material witness statute directs that upon arrest, the witness is to be treated in accordance with the criminal statute that is used to determine whether criminal defendants are released or held before trial. As soon as possible after arresting a material witness, the government must bring the witness to a judicial officer for a detention hearing. The principal issue for the court to determine at the initial hearing is whether the material witness should be released or incarcerated. 16 At this hearing, the court can hear any factual or legal challenges to the arrest as well as motions to depose a witness. 17 The law indicates a preference for ensuring the appearance of a witness by using alternatives to detention: “The judicial officer shall order the pretrial release of the person on personal recognizance … unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required.” 18 There is also a judicial preference in favor of release: “Only in rare circumstances should release be denied.” 19 The statute provides that the court can (1) release the witness on his or her own recognizance, (2) release the witness on bond or other conditions, (3) temporarily detain 14 18 U.S.C. § 3144 15 See, e.g., Bacon v. United States, 449 F.2d 933, 938-939 (9th Cir. 1971). 16 18 U.S.C. § 3142. 17 See, e.g., Stone v. Holzberger, 807 Federal Supplement (F.Supp.) 1325, 1338 (S.D. Ohio 1992). 18 18 U.S.C. § 3142(b); 18 U.S.C. § 3142(c), (f). The statute provides the court with a number of conditions to impose on a witness in lieu of detention to ensure that the witness will appear at the criminal proceeding. Such conditions include regularly reporting to the court or a government agency, maintaining employment, maintaining or commencing an educational program, abiding by restrictions on travel and abode, complying with a curfew, or returning to custody for specified hours. 18 U.S.C. § 3142(c)(1)(B). 19 United States v. Motamedi, 767 F.2d 1403, 1405 (9th Cir. 1985) (quoting Sellers v. United States, 89 S.Ct. 36, 38 (1968). “Federal law has traditionally provided that a person arrested for a non-capital offense shall be admitted to bail.” Ibid (citing Stack v. Boyle, 342 U.S. 1, 4 (1951)). HUMAN RIGHTS WATCH VOL. 17, NO. 2(G) 12
the witness for immigration or probation purposes, or (4) order detention. Detention can be ordered only if the imposition of release conditions will not reasonably assure the witness’s appearance at the proceeding for which his testimony is sought. 20 To determine whether there are conditions of release that will reasonably assure appearance, the court must hold a detention hearing immediately upon the person’s initial appearance unless the witness or the government seeks additional time. The witness has the right to be represented by counsel, to have counsel appointed if he is financially unable to obtain representation, and to present and cross-examine witnesses. 21 As noted above, in determining whether to release or detain a witness, the court relies on the same statute that governs whether a criminal suspect is detained prior to trial. Generally, this will result in the court weighing the witness’s character, employment, family and community ties to assess the extent to which there is a risk of flight and what, if any, conditions of release will reasonably assure that the person will appear. 22 If the court orders a material witness detained, the court must provide a written statement explaining the reasons for detention. 23 The court must direct that the witness be held in a detention center separate from individuals awaiting or serving sentences, to the extent that is practicable, and that the witness be afforded a reasonable opportunity for private consultation with counsel. 24 Also, if ordered detained or unable to satisfy any release conditions, a witness can request to be deposed in lieu of detention by filing a written motion and notifying the government. 25 If the witness makes a motion to be deposed, the government must show that the witness’s testimony cannot be adequately secured by a deposition. 26 20 18 U.S.C. § 3142(g). Section 3142 allows judicial officers to “order the pretrial release of the person on personal recognizance, or upon execution of an unsecured appearance bond in an amount specified by the court … unless the judicial officer determines that such release will not reasonably assure the appearance of the person as required.” 18 U.S.C. § 3142(b). For criminal defendants, the statute also allows the judge to assess whether or not release “will endanger the safety of any other person or their community.” However, Congress made clear that this is not a factor relevant to the decision to detain a material witness. United States v. Awadallah, 349 F.3d 42, 63 n.15 (2d Cir. 2003). 21 18 U.S.C. § 3142(f); 18 U.S.C. § 3006A(a)(1)(G). 22 18 U.S.C. § 3142(g). 23 18 U.S.C. § 3142(i)(1); In re Grand Jury Material Witness Detention, 271 Federal Supplement, Second Series (F. Supp. 2d) 1266 (D. Or. 2003). 24 18 U.S.C. § 3142(i)(2), (3). 25 Federal Rules of Criminal Procedure (Fed R. Crim. P.), p. 15. 26 18 U.S.C. § 3144. 13 HUMAN RIGHTS WATCH VOL. 17, NO. 2(G)
Page 1 and 2: Human Rights Watch June 2005 Vol. 1
Page 3 and 4: Summary After I got in the cell I w
Page 5 and 6: were almost all the witnesses Musli
Page 7 and 8: combination with having worked in t
Page 9 and 10: Recommendations The recommendations
Page 11 and 12: o requiring the government to infor
Page 13: eflects a compromise between an ind
Page 17 and 18: those suspected of committing a cri
Page 19 and 20: Arizona, and Florida, where the nin
Page 21 and 22: testimony—you get fingerprints, y
Page 23 and 24: The FBI appeared to believe that Ma
Page 25 and 26: interrogating him, without counsel,
Page 27 and 28: Jose Padilla On May 8, 2002, the Ju
Page 29 and 30: The Justice Department has often st
Page 31 and 32: criticism on the conduct of Assista
Page 33 and 34: government failed to take Diab’s
Page 35 and 36: Eric Sears, a former federal prosec
Page 37 and 38: sentencing. The judge finally got a
Page 39 and 40: accompanied by extensive searches c
Page 41 and 42: and young children. 121 He was deta
Page 43 and 44: High Security Conditions of Detenti
Page 45 and 46: Harassment and Abuse in Jail Many m
Page 47 and 48: uised. See id. In the elevator, the
Page 49 and 50: In practice, then, court approval o
Page 51 and 52: I kept asking what am I being charg
Page 53 and 54: As Mark Foster, the lawyer for one
Page 55 and 56: Federal marshals transferred the ei
Page 57 and 58: [T]he government filed all their pa
Page 59 and 60: Federal agents have also refused to
Page 61 and 62: In many cases, the trauma of forcef
Page 63 and 64: In January 2002, another hotel gues
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abuse, international human rights 2
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It is not clear why the courts have
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Things go on behind those doors tha
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providing interviews, submitting to
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Detaining Witnesses Who Cooperate w
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stayed with the FBI agents for eigh
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government, “I’m not coming.”
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armed forces for several years and
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Congress included the deposition re
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X. Haste, Incompetence, Prejudice:
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government’s basis was weak. Thes
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target, 272 the state police ordere
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Khan and Azmath were deported in Ja
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told them I told them I had no idea
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y subletting their apartment. Altho
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The post-scripts to the stories of
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I could not ask questions. What’s
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Ayub Ali Khan and Mohammad Azmath A
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get all these kinds of questions—
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Human Rights Watch and the American
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Witness to Abuse - Human Rights Watch

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