Arrest and Detention of Material Witnesses and the USA PATRIOT and Terrorism Reauthorization Act (H.R. 3199): A Sketch

Publication Date: September 2005

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Justice

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Abstract:

Section 12 of the USA PATRIOT and Terrorism Prevention Reauthorization Act (H.R. 3199), as reported by the House Judiciary Committee, directed the Department of Justice to review the detention of individuals under the federal material witness statute, "including their length [of detention], conditions of access to counsel, frequency of access to counsel, offense at issue, and frequency of appearance before a grand jury." The Office of Management and Budget announced that the Administration strongly opposed section 12 on the grounds that the review by the Department of Justice's Inspector General and reports to the House and Senate Judiciary Committees called for by that section would "entail wholesale violation"of the grand jury secrecy provisions. The provision was dropped from the bill prior to House passage and does not appear in the corresponding measure approved by the Senate (S. 1389/H.R. 3199). The episode illustrates the level of controversy easily generated by material witness statutes.

The federal material witness statute provides that, "If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding [including a grand jury proceeding], and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title [relating to bail]. No 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. Release of a material 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," 18 U.S.C. 3144.

This is an abridged version of CRS Report RL33077, Arrest and Detention of Material Witnesses: Federal Law in Brief and Section 12 of the USA PATRIOT and Terrorism Prevention Reauthorization Act (H.R. 3199), without footnotes or most citations to authority.