Coercive Process for Material Witnesses Needs Reform

The material witness statute confers incredible power on the government to obtain the arrest and detention of a witness — even though that person is not accused of having committed any crime — simply by showing the court that the person is purportedly “material in a criminal proceeding” and that it “may become impracticable” to obtain the witness’ testimony using a subpoena alone.

Despite this broadly defined authority, the statute, codified at 18 USC § 3144, provides precious little guidance on the standards for assessing materiality, gauging the impracticability of securing their grand jury or trial testimony with a subpoena in the ordinary course, or how these uncharged yet detainable people should be housed and treated. Courts are highly deferential to the government on these matters, and, as a result, witnesses are routinely subjected to detention in local jails and face undue coercion to agree to be debriefed or otherwise cooperate in ways they may well have declined had they been a subpoenaed witness.

Originally published in Law360; reprinted with permission.