Iowa Law Review, Vol. 55, No. 1 (October 1969), pp. 1-25 (reprinted with permission)


Unknown to many lawyers, American legal history is marred with numerous recorded episodes of extended imprisonment of innocent American citizens. Frequently guiltless of any offense, these citizens are held because they happen to be witnesses to a crime and are financially unable to post a bond to insure their appearance to testify at the trial of the person accused of committing it. Not simply a feature of law from a bygone era, these incidents of imprisonment continue to arise today. Occasionally, a situation occurs wherein the man accused of the crime is released on bail and spends his time before trial free, while the witness to the affair languishes in jail for weeks or months until the defendant's case is reached in court. It is incongruous that in an era of American justice so centrally concerned with the rights of accused persons, including the salutary effort to insure adequate representation and protection of the liberties of the accused, no similar thrust has been generated on behalf of the innocent witness to the crime. This article seeks to explore the current status of the "material witness" laws and to analyze the necessity for and constitutionality of such provisions.