Witness to Abuse - Human Rights Watch

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)