Material witness
A material witness is a person with information alleged to be material
Materiality (law)
Materiality is a legal term which can have different meanings, depending on context. When speaking of facts, the term generally means a fact which is "significant to the issue or matter at hand".-In the law of evidence:...

 concerning a criminal proceeding. The authority to detain material witnesses dates to the First Judiciary Act of 1789, but the Bail Reform Act of 1984 most recently amended the text of the statute, and it is now codified at . The most recent version allows material witnesses to be held to ensure the giving of their testimony in criminal proceedings or to a grand jury. Since September 11, 2001, the U.S. has used the material witness statute to detain suspects without charge for indefinite periods of time, often under the rubric of securing grand-jury testimony. This use of the statute is controversial and is currently under judicial review.

Text of the Statute

, commonly referred to as the "material witness statute," provides as follows:

If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal 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 of this title. 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.


A material witness is an individual who contains information "material" to a criminal proceeding. With the authority of , the United States government can seek a warrant from a judicial officer in order to arrest a material witness. To do so, a United States official must file an affidavit with the judicial officer alleging that (1) the individual has material information to the criminal proceeding and (2) it would be "impracticable to secure the presence of the person by subpoena
A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...


"a criminal proceeding"

Although there has been much legal debate about the scope of the material witness statute, it has been clear since the Ninth Circuit Court of Appeals ruling in Bacon v. United States, 449 F.2d 933 (9th Cir. 1971), that the phrase "a criminal proceeding" from the material witness statute includes both trials
Trial (law)
In law, a trial is when parties to a dispute come together to present information in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court...

 (uncontroversially) and grand jury
Grand jury
A grand jury is a type of jury that determines whether a criminal indictment will issue. Currently, only the United States retains grand juries, although some other common law jurisdictions formerly employed them, and most other jurisdictions employ some other type of preliminary hearing...

 investigations. Thus, the ability to arrest material witnesses under the statute extends to the ability to arrest those with information material to a grand jury investigation (assuming the showing of impracticability is also made). The Supreme Court has not had a chance to rule on this statutory issue.

September 11 Controversy

After September 11, 2001, the United States government announced a campaign of aggressive detention, by whatever means possible, of those potentially involved in the attacks on the United States.
This included the use of the material witness statute to detain suspects, as opposed to witnesses. Many of those detained as material witnesses were detained as witnesses to grand jury proceedings.
This caused controversy for several reasons. Primarily, critics saw the government's use of the material witness statute to detain suspects as an evasion of the Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...

 which provides some protections to criminal suspects that were seemingly ignored in the arrests of the post-September 11 material witness detainees. Secondarily, legal critics took issue anew with the application of the material witness statute to grand jury proceedings. However, statistics on Federal material witness warrant hearings showed a steady decline in their use, from 3603 material witness hearings in FY2000, to 3344 in FY2001 and 2961 in FY2002, and during and after that period the overwhelming majority of material witness warrant hearings took place in judicial districts bordering Mexico and involved illegal alien traffic. Seemingly in response to this controversy, and with the intent of alleviating the concerns over such use of the material witness statute, Senator Patrick Leahy
Patrick Leahy
Patrick Joseph Leahy is the senior United States Senator from Vermont and member of the Democratic Party. He is the first and only elected Democratic United States Senator in Vermont's history. He is the chairman of the Senate Judiciary Committee. Leahy is the second most senior U.S. Senator,...

 proposed A Bill to Amend the Material Witness Statute to Strengthen Procedural Safeguards, and for Other Purposes, § 1.
The legislation is currently pending before the Senate Judiciary Committee. A 2006 ruling found that material witness law could only be employed when an individual is genuinely sought as a witness and there was a flight risk; not to be used as a preventive action. In 2009 a federal court of appeals found that former Attorney General John Ashcroft
John Ashcroft
John David Ashcroft is a United States politician who served as the 79th United States Attorney General, from 2001 until 2005, appointed by President George W. Bush. Ashcroft previously served as the 50th Governor of Missouri and a U.S...

 could be sued personally for wrongful detention by material witness Abdullah al-Kidd, an American citizen arrested in 2003 and held for 16 days in maximum security prisons to be used as a witness in the trial of Sami Omar Al-Hussayen
Sami Omar Al-Hussayen
Sami Omar Al-Hussayen, also known as Sami Al-Hussayen, a native of Saudi Arabia and former graduate student in Computer Science at the University of Idaho, is a Webmaster who was acquitted of charges that he ran Web sites which supported terrorism....

(who himself was acquitted of all charges of supporting terrorism). This decision was unanimously reversed by the United States Supreme Court on May 31st 2011 affirming the constitutionality of the pretextual use of material witness statutes.
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