In spite of the concerns of some that the authority can be used as a means to jail a suspect while authorities seek to discover probable cause sufficient to support a criminal accusation or as a preventive detention measure, the lower courts have denied that the federal material witness statute can be used as a substitute for a criminal arrest warrant. In a literal sense, there are no parties to a grand jury investigation other than the grand jury. Issuance of a section 3144 arrest warrant requires affidavits establishing probable cause to believe (1) that the witness can provide material evidence, and (2) that it will be "impracticable" to secure the witness' attendance at the proceeding simply by subpoenaing him. A material witness need only satisfy the appearance standard. 3199 as reported by the House Judiciary Committee amended section 1001 of the USA PATRIOT Act by directing periodic review of the exercise of the authority under section 3144. As it is written, this provision would entail wholesale violation of Rule 6(e) of the Federal Rules of Criminal Procedure, which protects the secrecy and sanctity of grand jury proceedings." Perhaps because of Administration opposition, the provision was dropped from H.R. S. 1739 : S. 1739 , introduced by Senator Leahy, rewrites section 3144. In lieu of the clear and convincing evidence standard in favor of release and the time limits on detention, the existing statute insists that "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," 18 U.S.C.
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.
In response to objections that the authority had been misused, H.R. 3199 as reported by the House Judiciary Committee required Justice Department reports on use of the authority in a grand jury context. The provision was dropped before the bill was taken up. The version sent to the President after passage had no such provision.
S. 1739 would rewrite section 3144, among other things, establishing explicit and more demanding standards for arrest and detention and imposing explicit time limitations on detention.
This is an abridged version of CRS Report RL33077, Arrest and Detention of Material Witnesses: Federal Law In Brief, by [author name scrubbed], without footnotes, most citations to authority, or appendixes.