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Publication Date

2008

Abstract

Civil liberties issues raised by governmental interference with free speech or by police execution of clandestine searches are regularly litigated. Less obtrusive but nonetheless highly concerning is the subject of this Article. Lurking under the radar is a hidden danger. Authorities have protected and expanded their statutory opportunities to imprison unsuspecting and sometimes innocent witnesses to crimes. Most Americans are shocked to know that witnesses to crimes can be jailed in order to insure their testimony against a defendant. Before 9/11, only a handful of unfortunate citizens felt the sting of these laws. The accelerated use of material witness statutes by authorities after 9/11 signaled a remarkable shift in emphasis. Instead of arresting witnesses in order to hold them for testimony, they were arrested to prosecute them for crimes. This Article challenges the propriety of using material witness laws as a form of preventive detention. It recommends ending pretextual arrests of witnesses. To this end, there is a pressing need for both court and legislative action. Courts should erect a presumption. If a person is arrested for interrogation and held as a witness, a presumption would arise if the hold is later converted into a criminal charge, with the witness on the receiving end of it. Such a charge would be subject to dismissal. Congress needs to enact measures to limit the number of days a witness can be held and to tighten probable cause standards for arresting witnesses. Defendants in terrorism cases should be processed under different, separate provisions of law. Future federal arrests of material witnesses need to follow the path adhered to in state practice. Only those individuals who hold powerful information about the criminality of another person should be confined under material witness laws.

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