A witness who has information pertaining to a lawsuit or criminal prosecution that is significant enough to affect the outcome of the matter. In cases where a potential material witness is thought to be a flight risk, that person may sometimes be held in custody without being charged with a crime.

In theory, at least, the United States government is not permitted to jail people at will. The Fourth Amendment prohibits the “unreasonable” seizures of persons. Generally, arresting and detaining a person is “unreasonable” if the arresting authorities lack probable cause to believe the person has committed a crime.

Police are permitted to briefly detain people to ask them questions. Police may not hold people indefinitely in jail unless the police have grounds to charge them with a crime. Thus, under normal circumstances, if you are in the United States and are being questioned by the police, once you have identified yourself, you do not have to answer further questions. If the police persist, you may (and should) frequently ask: “Am I under arrest?” or “Am I free to go?” While this doesn’t always work to make the police go away, it is better than saying something which might be used against you.

Since September 11, 2001, however, “normal circumstances” may be a thing of the past. The government now employs two labels to get around the Fourth Amendment and other rights intended to protect people accused of crimes:

  • “material witness”, and
  • “enemy combatant”

NB: The "enemy combatant" approach seems to be directed at keeping lawyers from helping people the government actually intends to charge with crimes, as discussed in the writeup of the most famous so-called "combatant" arrested thus far in connection with September 11, 2001, Jose Padilla.

Material Witness

The Material Witness Statute (18 U.S.C. § 3144) provides:

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 3142 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.

At a deposition, lawyers for both sides (government and defense) ask questions of a witness, and the questions and answers are recorded, usually stenographically by a court reporter, though sometimes also on videotape. A deposition therefore differs from a grand jury proceeding in two (2) very significant ways. First, lawyers for a criminal defendant are not permitted to ask questions in a grand jury proceeding. A grand jury proceeding is strictly a show put on by the prosecutor: there is no judge, there are no objections and no cross-examination. Second, grand jury proceedings are secret, and no record is made.

In Bacon v. United States, 449 F.2d 933 (9th Cir. 1971), the United States Court of Appeals for the Ninth Circuit decided that an earlier version of the Material Witness Statute authorized the detention of grand jury witnesses (not just trial witnesses). The Ninth Circuit reasoned that the phrase, “criminal proceeding”, could include the grand jury process.

Grand jury proceedings must be kept secret because they are often conducted while a criminal investigation is pending, and because it helps preserve the reputations of persons who are indicted but later released because the grand jury found no probable cause to believe they had committed a crime.

The conclusion the government reaches is that it is “reasonable”, under the statute and the Constitution, to ignore the statute’s direction to take a deposition and release the witness, and instead jail the person indefinitely, pending a grand jury proceeding or perhaps even a criminal trial -- which could take years.

United States v. Awadallah

Awadallah, 21, was a student at Grossmont College in El Cajon, California. He was questioned on September 20, 2001, after authorities found a note with his first name and an old phone number in a car abandoned by some of the September 11, 2001 hijackers at Dulles International Airport. FBI agents searched his bedroom, where they found computer images of Osama bin Laden. Awadallah then failed a polygraph examination, posing questions about whether he had advance knowledge of or participated in the attacks. Over the next three weeks, Awadallah was in maximum security at four jails in Southern California, Oklahoma and Manhattan, and was compelled to testify in grand jury proceedings. Awadallah admitted that he met one of the hijackers, Nawaf Alhazmi, while living in the San Diego area, but he repeatedly denied knowing the first name of another hijacker, Khalid Almihdhar. In fact, Almihdhar's first name appeared in a notebook that Awadallah used for a course in English as a second language. For this discrepancy, the government charged Awadallah with the crime of perjury.

United States District Judge Shira A. Scheindlin of the Southern District of New York ruled that the Justice Department has overreached in imprisoning as a “material witness” a man that the authorities believe might have information for grand juries investigating terrorism. Judge Scheindlin dismissed perjury charges against Awadallah, concluding that the testimony must be suppressed because Awadallah had been “unlawfully detained.” The Justice Department appealed and Attorney General John D. Ashcroft called Judge Scheindlin’s decision “an anomaly”, which strictly speaking is correct, since only Judge Scheindlin has had the courage to thwart the Justice Department’s misuse of the Material Witness Statute. Awadallah has been released on bond, while the matter is pending on appeal before the United States Court of Appeals for the Second Circuit.


Steve Fainaru and Amy Goldstein, “Judge Rejects Jailing Of Material Witnesses; Ruling Imperils Tool in Sept. 11 Probe”, Washington Post, May 1, 2002; http://www.washingtonpost.com/ac2/wp-dyn/A11562-2002Apr30?language=printer

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