By Catherine Cone | 62 Am. U. L. Rev. 333 (2012)

The Supreme Court, in its 2011 decision in Ashcroft v. al-Kidd, closed the door under the Fourth Amendment on a material witness’s ability to argue that the government pretextually held the witness for individual investigation rather than for testimony in an upcoming criminal proceeding.  Although traditionally pretext was raised as a Fourth Amendment argument, a material witness can also claim pretext under the federal material witness statute by arguing that detaining officers did not comply with the statute, and thus, avoid the constitutional argument altogether.  In al-Kidd, the Court did not address whether a material witness can instead argue pretext through the federal material witness statute directly.

Regardless of whether the country is in the immediate aftermath of an attack on its national security, like the 9/11 attacks, or in peacetime, the concerns that arose in relation to witnesses who were pretextually held following 9/11 are equally applicable.  These concerns relate to the justification of a witness’s incarceration and include the government’s misrepresentation of how “material” a witness actually is to a criminal proceeding and the genuine flight risk a material witness poses.

To protect against the reality of these concerns, courts should read a higher standard into the federal material witness statute before authorizing a warrant to detain a material witness.  Today, in order to detain a material witness pursuant to the statute, the government must meet the plain terms of the materiality and impracticability requirements; however, courts have not definitively determined the evidentiary standard used to assess whether those terms have been met.  Therefore, the door is still open for discussion concerning the evidentiary burden the government should be required to meet to legally detain a material witness under the statute.

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