Federal Material Witness Statute: A Legal Overview of 18 U.S.C. § 3144

July 1, 2011 – June 26, 2024 R41903

Federal Material Witness Statute: A Legal
Overview of 18 U.S.C. § 3144
Updated June 26, 2024
Congressional Research Service
https://crsreports.congress.gov
R41903

Federal Material Witness Statute: A Legal Overview of 18 U.S.C. 3144

Summary
This is an overview of the law under the federal material witness statute, 18 U.S.C. § 3144, which
authorizes the arrest of material witnesses, permits their release under essentially the same bail
laws that apply to federal criminal defendants, but favors their release after their depositions have
been taken.
A list of citations to comparable state statutes is appended.
The report appeared in an earlier version as CRS Report RL33077, Arrest and Detention of
Material Witnesses: Federal Law In Brief, by Charles Doyle (2006).
Congressional Research Service

Federal Material Witness Statute: A Legal Overview of 18 U.S.C. 3144

Introduction
Under the federal material witness statute, 18 U.S.C. § 3144, witnesses in a federal criminal case
may find themselves arrested, held for bail, and in some cases imprisoned until they are called
upon to testify.1 The same is true in most if not all of the states.2 Although subject to intermittent
criticism,3 it has been so at least from the beginning of the Republic.4 The Supreme Court has
never squarely considered the constitutionality of § 3144 or any of its predecessors, but it has
observed in passing that, “[t]he duty to disclose knowledge of crime . . . . is so vital that one
known to be innocent may be detained in the absence of bail, as a material witness.”5 Even more
telling may be an earlier remark from the Court to the effect that, “[t]he constitutionality of this
[federal material witness] statute apparently has never been doubted.”6

1 18 U.S.C. § 3144 (text appended).
2 A discussion of the provisions of state law is beyond the scope of this report. Citations to the state statutes are
appended.
3 1 JOEL PRENTISS BISHOP, COMMENTARIES ON THE LAW OF CRIMINAL PROCEDURE, § 34, at 18–19 (2d ed. 1872) (“The
committing magistrate, having the witnesses for the prosecution before him, will take their recognizances to appear and
testify before the upper court. Sometimes the purposes of justices require that these recognizances should be with
sureties, and occasionally the unpleasant result follows that a witness cannot obtain sureties, and he is detained in
prison”); CODE OF CRIMINAL PROCEDURE § 58 note (AM. L. INST. Tentative Draft No. 1, 1928) (“One of the evils in
connection with the administration of the criminal law in most states is the practice of confining for long periods of
time, generally in the county jail, witnesses who cannot give bail”); Joseph Casula & Morgan Dowd, Cessante Ratione
Legis Cessat Ipsa Lex (The Plight of the Detained Material Witness), 7 CATH. U. L. REV 37, 50 (1957) (“Failure of state
and federal government to come up with a sound policy in dealing with the problem of material witnesses is manifestly
a deplorable situation.”); Stacey M. Studnicki, Material Witness Detention: Justice Served or Denied?, 40 WAYNE L.
REV. 1533, 1568 (1994) (“The continued use of material witness statutes will undoubtedly be an issue debated well into
the next century. Whether the criminal justice system abandons this ancient practice in favor of a more humane policy
toward the treatment of witnesses remains to be seen.”); Robert Boyle, The Material Witness Statute Post September
11: Why It Should Not Include Grand Jury Witnesses, 48 N.Y.L. SCH. L. REV. 13, 13 (2003) (“Upon the mere
conclusory statement of a government official that a person has material information and might not respond to a
subpoena, the person may be incarcerated for an indefinite period of time, without bail, and under onerous conditions”).
4 Judiciary Act of 1789, ch. 20, § 33, 1 Stat. 73, 91 (1789) (“[C]opies of the process [criminal complaint] shall be
returned as speedily as may be into the clerk’s office of such court, together with the recognizances of the witnesses for
their appearance to testify in the case; which recognizances the magistrate before whom the examination shall be, may
require on pain of imprisonment.”); see also, Rev. Stat. § 879 (1878) (“Any judge or other officer who may be
authorized to arrest and imprison or bail persons charged with any crime or offense against the United States may, at
the hearing of any such charge, require of any witness produced against the prisoner, on pain of imprisonment, a
recognizance, with or without sureties, in his discretion, for his appearance to testify in the case.”); 28 U.S.C. § 657
(1926); FED. R. CRIM. P. 46(b), 18 U.S.C. App. (1946); 18 U.S.C. § 3149 (1970).
5 Stein v. New York, 346 U.S. 156, 184 (1953), overruled on other grounds in Jackson v. Denno, 378 U.S. 368 (1964);
see also, Blair v. United States, 250 U.S. 273, 280–81(1919) (“At the foundation of our federal government the
inquisitorial function of the grand jury and the compulsion of witnesses were recognized as incidents of the judicial
power of the United States. . . . [B]y the Sixth Amendment, in all criminal prosecutions the accused was given the right
to a speedy and public trial, with compulsory process for obtaining witnesses in his favor. By the first Judiciary Act, the
mode of proof by examination of witnesses in the courts of the United States was regulated, and their duty to appear
and testify was recognized. . . . [The Revised Statutes] contain provisions for requiring witnesses in criminal
proceedings to give recognizance for their appearance to testify, and for detaining them in prison in default of such
recognizance. In all of these provisions . . . it is clearly recognized that the giving of testimony and the attendance upon
court or grand jury in order to testify are public duties which every person within the jurisdiction of the government is
bound to perform upon being properly summoned . . . . The personal sacrifice involved is a part of the necessary
contribution of the individual to the welfare of the public. The duty, so onerous at times, [is] yet so necessary to the
administration of justice to the forms and modes established in our system of government ” (citation omitted)); VIII
WIGMORE ON EVIDENCE §§ 2190–92 (3d ed. 1940).
6 Barry v. United States ex rel. Cunningham, 279 U.S. 597, 617 (1929).
Congressional Research Service
1

Federal Material Witness Statute: A Legal Overview of 18 U.S.C. 3144

In spite of the concerns of some that the authority could be used as a means to jail a suspect while
authorities seek to discover probable cause sufficient to support a criminal accusation7 or as a
preventive detention measure,8 the lower courts have denied that the federal material witness
statute can be used as a substitute for a criminal arrest warrant.9 Particularly in the early stages of
an investigation, however, an individual’s proximity to a crime may make him both a legitimate
witness and a legitimate suspect.10
Moreover, the Supreme Court held in Ashcroft v. al-Kidd that “an objectively reasonable arrest
and detention of a material witness pursuant to a validly obtained warrant cannot be challenged as
unconstitutional on the basis of allegations that the arresting authority had an improper motive.”11
The Ashcroft five-Justice majority, however, included Justice Kennedy who observed that the
“Court’s holding is limited to the arguments presented by the parties and leaves unresolved
whether the Government’s use of the material witness statute in this case was lawful.”12 The three
other Justices who took part in the case (the ninth Justice was recused) shared that view and those
who had declined to join the majority opinion, separately declared that “[w]hether the Fourth
Amendment permits the pretextual use of a material witness warrant for preventive detention of
an individual whom the Government has no intention of using at trial is, in my view, a closer
question than the majority’s opinion suggests.”13
It is clear, nevertheless, that the federal material witness statute is used with regularity14 and most
often in the prosecution of immigration offenses involving material witnesses who are foreign

7 Robert L. Carlson & Mark S. Voelpel, Material Witness and Material Injustice, 58 WASH. U. L. REV. 1, 9 (1980)
(“Over the years prosecutors and police have sometimes invoked the power to confine criminal suspects as witnesses
while gathering evidence against the witness-defendant.”).
8 Laurie L. Levenson, Detention, Material Witnesses & the War on Terrorism, 35 LOY. L.A. L. REV. 1217, 1225 (2002)
(“Material witness laws provide the government with the perfect avenue to jail those it considers dangerous. It is
preventive detention. . . . The government uses these laws to round up people because of what it expects them to do,
rather than what it can prove they have done.”).
9 United States v. Awadallah, 349 F.3d 42, 59 (2d Cir. 2003) (“The district court noted (and we agree) that it would be
improper for the government to use § 3144 for other ends, such as the detention of persons suspected of criminal
activity for which probable cause has not yet been established. However, the district court made no finding (and we see
no evidence to suggest) that the government arrested Awadallah for any purpose other than to secure information
material to a grand jury investigation.”); In re De Jesus Berrios, 706 F.2d 355, 358 (1st Cir. 1983) (“[N]o showing has
been made that the arrest was a subterfuge designed to obtain non-testimonial evidence or to bring a target before the
grand jury.” (even though the witness had been subpoenaed to appear before the grand jury to testify, provide hair
samples, and take part in a lineup)). (Case law under § 3144 is relatively sparse and dated).
10 United States v. Nichols, 77 F.3d 1277, 1278 (10th Cir. 1996) (Those subject to arrest under the federal statute
included Terry Nichols (who was subsequently convicted for complicity in the Oklahoma City bombing); Rumsfeld v.
Padilla, 542 U.S. 426, 430–31 (2004) (Jose Padilla was subsequently transferred to military custody as an “enemy
combatant”); In re Fed. Grand Jury Proceedings 03-01, 337 F. Supp. 2d 1218, 1220–21 (D. Or. 2004) (Brandon
Mayfield’s fingerprint was erroneously thought to match one linked to the Madrid train bombing).
11 Ashcroft v. al-Kidd, 563 U.S. 731, 744 (2011).
12 Id. (Kennedy, J., concurring with whom Ginsburg, Breyer, and Sotomayor, JJ. joined as to Part I).
13 Id. at 751-52 (Sotomayor, J., concurring in the judgment with whom Ginsburg and Breyer, JJ. joined). Justice Kagan
took no part in the case.
14 United States magistrate judges conducted 6,681 material witness hearings in FY2023; 6,341 in FY2022; 6,187 in
FY2021; 4,070 in FY2003; 2,961 in FY2002; and 3,344 in FY2001, Administrative Office of the United States Courts,
Judicial Business of the United States Courts, Judicial Business, Tables M-3 (2010–2023),
https://www.uscourts.gov/Statistics/JudicialBusiness.aspx. The annual reports of the Administrative Office of the
United States Courts indicate that the statistics have not changed a great deal over time, United States magistrates
conducted 6,865 material witness hearings in FY1981; 8,221 in FY1980; 6,481 in FY1978; 3,230 in FY1977; and
2,048 in FY1976, Reports of the Proceedings of the Judicial Conference of the United States/Annual Report of the
District of the Administrative Office of United States Courts, Table M-3 (1981); id. (1980); id. (1978); id. (1977); id.
(1976).
Congressional Research Service
2

Federal Material Witness Statute: A Legal Overview of 18 U.S.C. 3144

nationals.15 Critics, however, contended that immediately after September 11, 2001, Muslims
were disproportionately arrested and detained in abuse of the statute’s authority.16
Arrest
The federal material witness statute provides that:
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 [relating
to bail]. No material witness may be detained because of inability to comply with any

15 See, e.g., In re Class Action Application of Habeas Corpus, 612 F. Supp. 940 (W.D. Tex. 1985); United States v.
Nai, 949 F. Supp. 42 (D. Mass. 1996); United States v. Aguilar-Tamayo, 300 F.3d 562 (5th Cir. 2002); United States v.
Lai Fa Chen, 214 F.R.D. 578 (N.D. Cal. 2003), all involving illegal alien smuggling. Statistics from the Administrative
Office of the United States Courts indicate that an overwhelming majority of the material witness hearings conducted
by United States magistrate judges occur in judicial districts bordering Mexico:
District
FY2023
FY2022
FY2021
FY2020
FY2019
S.D. Cal.
2,333
2,143
1,402
2,151
2,379
D. Ariz.
1,653
1,112
271
995
1,456
D.N.M.
124
106
101
152
201
W.D. Tex.
34
48
43
587
1,021
S.D. Tex.
2,380
2,750
4,196
2,363
2,816
Administrative Office of the United States Courts, Judicial Business of the United States Courts, Table M-3, (2023); id.
(2022); id. (2021); id. (2019), https://www.uscourts.gov/Statistics/JudicialBusiness.aspx. The historical picture is much
the same:
District
FY1981
FY1980
FY1978
FY1977
FY1976
S.D. Cal.
2637
3636
2821
1095
755
D. Ariz.
603
691
978
770
366
D.N.M.
57
16
147
154
85
W.D. Tex.
651
734
1267
252
211
S.D. Tex.
2232
1946
2244
461
374
Reports of the Proceedings of the Judicial Conference of the United States/Annual Report of the Administrative Office
of United States Courts, Table M-3 (1981); id. (1980); id. (1978); id. (1977); id. (1976).
By comparison, United States magistrate judges in districts not bordering Mexico conducted far fewer:
District
FY2023
FY2022
FY2021
FY2020
FY2019
C.D. Cal.
4
42
48
28
68
W.D.N.Y.
0
3
2
1
0
N.D. Il .
0
0
0
0
0
W.D. Okla.
0
1
5
0
4
D. Nv.
3
2
1
1
0
Administrative Office of the United States Courts, Judicial Business of the United States Courts, Table M-3, (2023); id.
(2022); id. (2021); id. (2019), https://www.uscourts.gov/Statistics/JudicialBusiness.aspx .
16 151 CONG. REC. S10296 (daily ed. Sept. 21, 2005), citing, Witness to Abuse: Human Rights Abuses Under the
Material Witness Law Since September 11, 17 HUMAN RIGHTS WATCH 1–3 (June 2005),
https://www.hrw.org/report/2005/06/26/witness-abuse/human-rights-abuses-under-material-witness-law-september-11.
Congressional Research Service
3

Federal Material Witness Statute: A Legal Overview of 18 U.S.C. 3144

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.17
An arrest warrant for a witness with evidence material to a federal criminal proceeding may be
issued by federal or state judges or magistrates.18 The statute applies to potential grand jury
witnesses as well as to potential trial witnesses.19 Section 3144 on its face authorizes arrest at the
behest of any party to a criminal proceeding. In the case of a criminal trial, both the government
and the defendants may call upon the benefits of § 3144.20 Availability is a bit less clear in the
case of grand jury proceedings. In a literal sense, there are no parties to a grand jury investigation
other than the grand jury.21 Moreover, it seems unlikely that a suspect, even the target of a grand
jury investigation, would be considered a “party” to a grand jury proceeding. The purpose of §
3144 is the preservation of evidence for criminal proceedings. Potential defendants, even if they
are the targets of a grand jury investigation, have no right to present evidence to the grand jury.22
On the other hand, a federal prosecutor ordinarily arranges for the presentation of witnesses to the
grand jury.23 It is therefore not surprising that the courts seem to assume without deciding that the
government may claim the benefits of § 3144 in the case of grand jury witnesses.24
Issuance of a § 3144 arrest warrant requires affidavits establishing probable cause to believe (1)
that the witness can provide material evidence, and (2) that it will be “impracticable” to secure
the witness’ attendance at the proceeding simply by subpoenaing him.25 Neither the statute nor the
case law directly address the question of what constitutes “material” evidence for purposes of §
3144, but in other contexts the term is understood to mean that which has “a ‘natural tendency to
influence, or [is] capable of influencing, the decision of the decisionmaking body to which it was
addressed.’”26 At the grand jury level, the government may establish probable cause to believe a

17 18 U.S.C. § 3144.
18 Id. § 3156(a)(1) (“As used in sections 3141–3150 of this chapter—(1) the term ‘judicial officer’ means, unless
otherwise indicated, any person or court authorized pursuant to section 3041 of this title, or the Federal Rules of
Criminal Procedure, to detain or release a person before trial or sentencing or pending appeal in a court of the United
States, and any judge of the Superior Court of the District of Columbia”). Section 3041 authorizes federal and state
judges and magistrates to issue arrest warrants and conduct bail proceedings in federal criminal cases.
19 United States v. Awadallah, 349 F.3d 42, 49–51 (2d Cir. 2003); Bacon v. United States, 449 F.2d 933, 939–41 (9th
Cir. 1971); contra United States v. Awadallah, 202 F. Supp. 2d 55, 61–79 (S.D.N.Y. 2002), rev’d, 349 F.3d 42 (2d Cir.
2003).
20 Aguilar-Ayala v. Ruiz, 973 F.2d 411, 413 (5th Cir. 1992); Nai, 949 F. Supp. at 44.
21 United States v. Williams, 504 U.S. 36, 47 (1992) (“[T]he grand jury . . . has not been textually assigned [by the
Constitution] to any of the branches described in the first three Articles. It ‘is a constitutional fixture in its own right.’
In fact the whole theory of its function is that it belongs to no branch of the institutional Government . . . .” (quoting
United States v. Chanen, 549 F. 2d 1306, 1312 ((9th Cir. 1977)).
22 Chandler v. Moscicki, 253 F. Supp. 2d 478, 490 (W.D.N.Y. 2003) (“[A] ‘suspect under investigation by the grand
jury does not have a right to testify or have exculpatory evidence presented. ’”) (quoting, Williams, 504 U.S. at 52).
23 Federal criminal subpoenas are issued in blank by the clerk of the court and filled in by “the party” requesting them.
(Fed. R. Crim P. 17(a)). Federal prosecutors complete and see to the service of most grand jury subpoenas. Lopez v.
DOJ, 393 F.3d 1345, 1349 (D.C. Cir. 2005) (“[T]he term ‘grand jury subpoena’ is in some respects a misnomer,
because the grand jury itself does not decide whether to issue the subpoena; the prosecuting attorney does.”).
24 See, e.g., Awadallah, 349 F.3d at 66 (“[I]n the case of a grand jury proceeding, we think that a mere statement by a
responsible official, such as the United States Attorney, is sufficient . . . .” (quoting Bacon, 449 F.2d at 943 on the
question of affidavit sufficiency under § 3144)).
25 Id. at 64; United States v. Oliver, 683 F.2d 224, 231 (7th Cir. 1982); Baon, 449 F.2d at 943; United States v.
Coldwell, 496 F. Supp. 305, 307 (E.D. Okla. 1979).
26 Neder v. United States, 527 U.S. 1, 16 (1999) (alteration in original) (quoting United States v. Gaudin, 515 U.S. 506,
(continued...)
Congressional Research Service
4

Federal Material Witness Statute: A Legal Overview of 18 U.S.C. 3144

witness can provide material evidence through the affidavit of a federal prosecutor or a federal
investigator gathering evidence with an eye to its presentation to the grand jury.27 This may not
prove a particularly demanding standard in some instances given the sweeping nature of the grand
jury’s power of inquiry.28
As to the second required probable cause showing, a party seeking a material witness arrest
warrant must establish probable cause to believe that it will be impractical to rely upon a
subpoena to secure the witness’ appearance. The case law on point is sketchy, but it seems to
indicate that impracticality may be shown by evidence of possible flight,29 or of an expressed
refusal to cooperate,30 or of difficulty experienced in serving a subpoena upon a trial witness,31 or
presumably by evidence that the witness is a foreign national who will have returned or been
returned home by the time his testimony is required.32 Evidence that investigators have

509 (1995) (materiality as an element of various federal fraud statutes)). In the context of the prosecution’s failure to
disclose material exculpatory evidence, “the materiality standard for Brady claims is met when the favorable evidence
could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.”
Banks v. Dretke, 540 U.S. 668, 698 (2004) (quoting Kyles v. Whitley, 514 U.S. 419, 435 (1995)).
27 Awadallah, 349 F.3d at 66; Oliver, 683 F.2d at 231; Bacon, 449 F.2d at 943.
28 Branzburg v. Hayes, 408 U.S. 665, 688 (1972) (“Because [the grand jury’s] task is to inquire into the existence of
possible criminal conduct and to return only well-founded indictments, its investigative powers are necessarily broad.
‘It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be
limited narrowly by questions of propriety or forecasts of the probable result of the investigation, or by doubts whether
any particular individual will be found properly subject to an accusation of crime.’”); United States v. R. Enters., Inc.,
498 U.S. 292, 297 (1991) (“The function of the grand jury is to inquire into all information that might possibly bear on
its investigation until it has identified an offense or has satisfied itself that none has occurred. As a necessary
consequence of its investigatory function, the grand jury paints with a broad brush. ‘A grand jury investigation is not
fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if
a crime has been committed.’” (quoting Branzburg v. Hayes, 408 U.S. 665, 701 (1972)).
29 The government’s affidavit merely asserted “[W]ith respect to the probability of Nichol’s flight: ‘Terry Nichols[’]
renunciation of his U.S. citizenship and his association with Tim McVeigh, a person involved in such a heinous crime,
indicates that his testimony cannot be secured through the issuance of a subpoena,” In re Material Witness Warrant
Nichols, 77 F.3d 1277, 1278 (10th Cir. 1996) (quoting affidavit of FBI Special Agent Henry C. Gibbons) (dismissing
as moot an appeal from, United States v. McVeigh, 940 F. Supp. 1541, 1562 (D. Colo. 1996) (denial of a motion to
quash a material witness arrest warrant on grounds of impracticality)).
30 Coldwell, 496 F. Supp. at 307 (As to impracticality, “the Dempewolf affidavit shows that (a) Alston has refused to
cooperate with law enforcement officials. . . (b) Alston has indicated that he will not testify in this case unless the
Oklahoma Bureau . . . satisfies certain conditions that . . . are impossible to meet; (c) two unsuccessful attempts have
been made to serve Alston with a subpoena through his attorney; and (d) Alston’s attorney has indicated that Alston has
expressed a definite unwillingness to cooperate with the government”).
31 United States v. Feingold, 416 F. Supp. 627, 628 (E.D.N.Y. 1976) (“We are not here dealing with a witness before a
grand jury where disregard of a subpoena would simply mean a continuation of the grand jury’s deliberations until an
appropriate warrant might be served and executed. Here, Feingold’s testimony is needed at Nashi’s trial. Once
commenced, the trial would continue on consecutive days, and Feingold’s testimony would be needed before the
Government rested its case. Since Feingold is presumably in California, for the Government to have to defer its arrest
warrant until he ignored a subpoena to attend the trial will preclude his testifying altogether. The . . . affidavit showed
unsuccessful attempts to serve Feingold with a subpoena either through his California attorney or on seven different
days at Feingold’s home”).
32 Perhaps because the point seems too obvious for dispute or discussion, none of the reported federal cases appear to
have held the impracticality requirement can be satisfied by evidence that a material witness, who is a foreign national
illegally present in this country, may be overseas and thus beyond the reach of the court’s subpoena when his testimony
is required. The number of foreign material witnesses arrested and held for the trial of immigration prosecutions
indicate the government has experienced little difficulty satisfying the impracticality requirement in such cases, see,
e.g., Torres-Ruiz v. U.S. Dist. Ct., 120 F.3d 933 (9th Cir. 1997); United States v. Allie, 978 F.2d 1401 (5th Cir. 1992);
United States v. Nai, 949 F. Supp. 42 (D. Mass. 1996); United States v. Huang, 827 F. Supp. 945 (S.D.N.Y. 1993).
Congressional Research Service
5

Federal Material Witness Statute: A Legal Overview of 18 U.S.C. 3144

experienced difficulties serving a particular grand jury witness may not be enough to justify the
issuance of an arrest warrant in all cases.33
Bail
With limited variations, federal bail laws apply to material witnesses arrested under § 3144.34
Arrested material witnesses are entitled to the assistance of counsel during bail proceedings and
to the appointment of an attorney when they are unable to retain private counsel.35 The bail laws
operate under an escalating system in which release is generally favored, then release with
conditions or limitations is preferred, and finally as a last option detention is permitted.36 A
defendant is released on his word (personal recognizance) or bond unless the court finds such
assurances insufficient to guarantee his subsequent appearance or to ensure public or individual
safety.37 A material witness need only satisfy the appearance standard.38 A material witness who is
unable to do so is released under such conditions or limitations as the court finds adequate to
ensure his later appearance to testify.39 If neither word nor bond nor conditions will suffice, the
witness may be detained.40 The factors a court may consider in determining whether a material
witness is likely to remain available include his deposition, character, health, and community
ties.41
Depositions
Section 3144 declares that “[n]o 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.” The

33 Arnsberg v. United States, 757 F.2d 971, 976–77 (9th Cir. 1985) (“In the district court’s view, the difficulties
encountered by agents . . . in attempting to serve Arnsberg did not establish probable cause for believing that it would
be impracticable to secure Arnsberg’s presence by subpoena. . . . The facts do not show that Arnsberg was a fugitive or
that he would be likely to flee the jurisdiction; rather, they only show a man somewhat obstinately insisting upon his
right to refuse to appear before a grand jury until personally served. Those facts are insufficient to provide probable
cause for believing that Arnsberg’s attendance could not be secured by subpoena.”).
34 18 U.S.C. § 3144 (“[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.”).
35 Higazy v. Templeton, 505 F.3d 161, 179 (2d Cir. 2007); In re Class Action Application for Habeas Corpus, 612 F.
Supp. 940, 943–45(W.D. Tex. 1985); 18 U.S.C. § 3142(f); id. § 3006A(a)(1)(G).
36 18 U.S.C. § 3142(a) (“Upon the appearance before a judicial officer of a person charged with an offense, the judicial
officer shall issue an order that, pending trial, the person be—(1) released on personal recognizance or upon execution
of an unsecured appearance bond, under subsection (b) of this section; (2) released on a condition or combination of
conditions under subsection (c) of this section; (3) temporarily detained to permit revocation of conditional release,
deportation, or exclusion under subsection (d) of this section; or (4) detained under subsection (e) of this section.”).
37 Id. § 3142(b) (“The judicial officer shall order the pretrial release of the person on personal recognizance, or upon
execution of an unsecured appearance bond in an amount specified by the court, subject to the condition that the person
not commit a Federal, State, or local crime during the period of release, unless the judicial officer determines that such
release will not reasonably assure the appearance of the person as required or will endanger the safety of any other
person or the community.”).
38 United States v. Awadallah, 349 F.3d 42, 63 n.15 (2d Cir. 2003) (“Of course a material witness is not to be detained
on the basis of dangerousness.”) (quoting S. REP. 98-225, at 26 n.90 (1983), as reprinted in 1984 U.S.C.C.A.N. 3182,
3562); United States v. Nai, 949 F. Supp. 42, 44 (D. Mass. 1996) (“[A] material witness may be detained only if the
judicial officer finds by a preponderance of the evidence, that the material witness poses a risk of flight.”).
39 18 U.S.C. § 3142(c).
40 Id. § 3142(e).
41 Awadallah, 349 F.3d at 63 n.15; 18 U.S.C. § 3142(g).
Congressional Research Service
6

Federal Material Witness Statute: A Legal Overview of 18 U.S.C. 3144

corresponding federal deposition rule permits the witness,42 the government, or the defendant to
request that a detained material witness’ deposition be taken.43 A court enjoys only limited
discretion to deny a detained witness’ request. The Fifth Circuit has observed that:
Read together, Rule 15(a) and § 3144 provide a detained witness with a mechanism for
securing his own release. He must file a “written motion,” requesting that he be deposed.
The motion must demonstrate that his “testimony can adequately be secured by
deposition,” and that “further detention is not necessary to prevent a failure of justice.”
Upon such showing, the district court must order his deposition and prompt release.”44
Other courts seem to agree.45 The “failure of justice” limitation comes into play when release of
the witness following the taking of his deposition would ultimately deny a defendant the benefit
of favorable material testimony in derogation of his right to compulsory process.46 It does not
include the fact that a judicial officer will not be present at the taking of the deposition or that the
witness is an unlawfully present alien subject to prosecution.47
Unlike the request of a detained witness, a government or defendant’s request that a witness’
deposition be taken must show “exceptional circumstances” and that granting the request is “in
the interest of justice.”48 Nevertheless, the fact that a witness is being detained will often be
weighed heavily regardless of who requests that depositions be taken.49 The circuit courts appear
to be divided over whether in compliance with a local standing order the court may authorize
depositions to be taken sua sponte (on their own motion) in order to release a detained material
witness.50 In any event, whether any such depositions may be introduced in later criminal

42 FED. R. CRIM. P. 15(a)(2) (“A witness who is detained under 18 U.S.C. § 3144 may request to be deposed by filing a
written motion and giving notice to the parties. The court may then order that the deposition be taken and may
discharge the witness after the witness has signed under oath the deposition transcript.”).
43 Id. 15(a)(1) (“A party may move that a prospective witness be deposed in order to preserve testimony for trial. The
court may grant the motion because of exceptional circumstances and in the interest of justice. If the court orders the
deposition to be taken, it may also require the deponent to produce at the deposition any designated material that is not
privileged, including any book, paper, document, record, recording, or data.”).
44 Aguilar-Ayala v. Ruiz, 973 F.2d 411, 413 (5th Cir. 1992) (first quoting FED. R. CRIM. P 15(a); and then quoting 18
U.S.C. § 3144).
45 Torres-Ruiz v. United States District Court, 120 F.3d 933, 935 (9th Cir. 1997); United States v. Nai, 949 F. Supp. 42,
44 (D. Mass. 1996); United States v. Huang, 827 F. Supp. 945, 948 (S.D.N.Y. 1993).
46 Huang, 827 F. Supp. at 950–52; cf. United States v. Valenzuela-Bernal, 458 U.S. 858, 872–73 (1982) (The
government may deport “illegal-alien witnesses upon the Executive’s good-faith determination that they possess no
evidence favorable to the defendant in a criminal prosecution. The mere fact that the government deports such
witnesses is not sufficient to establish a violation of the Compulsory Process Clause of the Sixth Amendment or the
Due Process Clause of the Fifth Amendment. A violation of these provisions requires some showing that the evidence
lost would be both material and favorable to the defense.”).
47 Torres-Ruiz, 120 F.3d at 936.
48 FED. R. CRIM. P. 15(a)(1); United States v. Allie, 978 F.2d 1401, 1404 (5th Cir. 1992); United States v. Lai Fa Chen,
214 F.R.D. 578, 579 (N.D. Cal. 2003).
49 Lai Fa Chen, 214 F.R.D. at 580–81 (“Other courts faced with a motion brought by the government to depose
material witnesses have considered their detained status when finding exceptional circumstances. . . . Although
detention itself does not amount to a per se ‘exceptional circumstance’ under Rule 15(a)(1), it would be the rare case
when it would not” (first citing Allie, 978 F.2d 1401; and then citing United States v. Rivera, 859 F.2d 1204 (4th Cir.
1988)). In Rivera, the court observed that “[i]f the court had denied the motion for depositions, these alien witnesses
would have been incarcerated for more than three months, even though they were neither indicted nor convicted of a
crime. The appellant was both indicted and convicted on nine counts, and he spent less time incarcerated than did these
witnesses, who were deposed and deported.” 859 F.2d at 1207.
50 Compare United States v. Lopez-Cervantes, 918 F.2d 111, 112–14 (10th Cir. 1990) (depositions should not have
been taken), with Allie, 978 F.2d at 1403–05 (depositions were validly taken).
Congressional Research Service
7

Federal Material Witness Statute: A Legal Overview of 18 U.S.C. 3144

proceedings will depend upon whether the defendant’s constitutional rights to confrontation and
compulsory process have been accommodated.51
Related Matters
The government must periodically report to the court on the continuing justification for holding
an incarcerated material witness.52 While a material witness is being held in custody he is entitled
to the daily witness fees authorized for attendance at judicial proceedings.53 Upon his release, the
court may also order that he be provided with transportation and subsistence to enable him to
return to his place of arrest or residence.54 Should he fail to appear after he has been released from
custody he may be subject to prosecution,55 an offense which may be punished more severely if
his failure involves interstate or foreign travel to avoid testifying in a felony case.56

51 Allie, 978 F.2d at 1406–08; United States v. Eufracio-Torres, 890 F.2d 266, 268–71 (10th Cir. 1989); Rivera, 859
F.2d at 1207–09; Huang, 827 F. Supp. at 947–52.
52 FED. R. CRIM. P. 46(h)(2) (“An attorney for the government must report biweekly to the court, listing each material
witness held in custody for more than 10 days pending indictment, arraignment, or trial. For each material witness
listed in the report, an attorney for the government must state why the witness should not be released with or without a
deposition being taken under Rule 15(a)”). It is unclear whether and to what extent this safeguard can be evaded by
moving the witness from one district to another. See United States v. Awadallah, 436 F.3d 125, 129 (2d Cir. 2006)
(“[O]n September 21, Awadallah was arrested on a material witness warrant and detained without bailed based on
judicial findings that he possessed information material to the grand jury’s investigation of the September 11 attacks.
Also on September 21, Awadallah was taken from the FBI office to the San Diego Metropolitan Correctional Center
(‘MCC’) [in the Southern District of California], where he was held until September 27. Subsequently, he was moved
to the San Bernardino County Jail [in the Central District of California] and then to a federal facility in Oklahoma City.
On October 1, he was moved to the New York City MCC where he was held in solitary confinement.” (citation
omitted)).
53 28 U.S.C. § 1821 (“(b) A witness shall be paid an attendance fee of $40 per day for each day’s attendance. . . . When
a witness is detained pursuant to section 3144 of title 18 for want of security for his appearance, he shall be entitled for
each day of detention when not in attendance at court, in addition to his subsistence, to the daily attendance fee
provided by subsection (b) of this section.”).
54 Id. § 4282 (“On the release from custody of . . . a person held as a material witness, the court in its discretion may
direct the United States marshal for the district wherein he is released, pursuant to regulations promulgated by the
Attorney General, to furnish the person so released with transportation and subsistence to the place of his arrest, or, at
his election, to the place of his bona fide residence if such cost is not greater than to the place of arrest.”).
55 A person, released for appearance as a material witness under this chapter relating to bail, who knowingly fails to
appear before a court as required by the conditions of their release, shall be punished by a fine or imprisonment for not
more than one year, or both. Id. § 3146(a), (b).
56 18 U.S.C. § 1073 (“Whoever moves or travels in interstate or foreign commerce with intent either . . . to avoid giving
testimony in any criminal proceedings in such place in which the commission of an offense punishable by death or
which is a felony under the laws of such place, is charged shall be fined under this title or imprisoned not more than
five years, or both.”).
Congressional Research Service
8

Federal Material Witness Statute: A Legal Overview of 18 U.S.C. 3144

Appendix A. 18 U.S.C. § 3144 (text)
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 § 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.

Congressional Research Service
9

Federal Material Witness Statute: A Legal Overview of 18 U.S.C. 3144

Appendix B. Citations to State Material Witness
Statutes57
Alabama: ALA. CODE §§ 15-11-12 to 15-11-14;
Nevada: NEV. REV. STAT. § 178.494;
Alaska: ALASKA STAT. § 12.30.050;
New Hampshire: N.H. REV. STAT. ANN. § 597:6-d;
Arizona: ARIZ. REV. STAT. §§ 13-4081 to 13-4084;
New Jersey: N.J. STAT. ANN. § 2C:104-1 to 104-9;
Arkansas: ARK. CODE ANN. § 16-85-508;
New Mexico: N.M. STAT. ANN. § 31-3-7;
California: CAL. PENAL CODE §§ 878–83;
New York: N.Y. CRIM. PROC. LAW §§ 620.10 to 620.80;
Colorado: COLO. R. CRIM. P. 15(b);
North Carolina: N.C. GEN. STAT. § 15A-803;
Connecticut: CONN. GEN. STAT. §§ 54-82j, 54-82k;
North Dakota: N.D. R. Crim. P. 46;
Delaware: DEL. CODE ANN. tit. 11, § 5911;
Ohio: OHIO REV. CODE ANN. §§ 2937.16 to 2937.18;
Florida: FLA. STAT. §§ 902.15, 902.17;
Oklahoma: OKLA. STAT. tit. 22, §§ 270-275;
Georgia: GA. CODE ANN. §§ 17-7-26, 17-7-27;
Oregon: OR. REV. STAT. §§ 136.608 to 136.616;
Hawaii: HAW. REV. STAT. §§ 835-1 to 835-8;
Pennsylvania: Pa. R. Crim. P. 522;
Idaho: IDAHO CODE §§ 19-820 to 19-824;
Rhode Island: R.I. Super. Ct. R.Crim.P.46, R.I. D. Ct.
Illinois: 725 ILL. COMP. LAWS ANN. 5/109-3;
R. Crim. P. 46;
Iowa: IOWA CODE ANN. §§ 804.11, 804.23;
South Carolina: S.C. CODE ANN. §§ 22-5-550, 22-5-
Kansas: KAN. STAT. ANN. § 22-2805;
560;
Kentucky: Ky. R. Crim. P. 7.06;
South Dakota: S.D. CODIFIED LAWS § 23a-43-18;
Louisiana: LA. STAT. ANN. § 15:257;
Tennessee: TENN. CODE ANN. §§ 40-10-107 to 40-10-
Maine: ME. STAT. tit.15, § 1104;
112;
Maryland: Md. CODE ANN., CTS. & JUD. PROC. § 9-203; Texas: TEX. CODE CRIM. PRO. ANN. art.24.23 to 24.27;
Massachusetts: MASS. GEN. LAWS ANN. ch. 276, §§ 45–
Utah: UTAH R. CRIM. P. 7C;
52;
Vermont: VT. STAT. ANN. tit. 13, § 6605;
Michigan: MICH. COMP. LAWS §§ 765.29, 765.30,
Virginia: VA. CODE ANN. § 19.2-127;
767.35;
Washington: WASH. SUPER. CT. CRIM. R. 4.10;
Minnesota: MINN. STAT. ANN. §§ 629.54, 629.55;
West Virginia: W. VA. CODE §§ 62-1c-15, 62-6-4;
Mississippi: MISS. CODE ANN. § 99-15-7;
Wisconsin: WIS. STAT. ANN. § 969.01;
Missouri: MO. ANN. STAT. §§ 544.420 to 544.440;
Wyoming: WYO. STAT. ANN. § 5-6-206.
Montana: MONT. CODE ANN. § 46-11-601;
Nebraska: NEB. REV. STAT. §§ 29-507 to 29-508.02;

Author Information

Charles Doyle

Senior Specialist in American Public Law

57 In addition, forty-nine states have adopted the Uniform Act to Secure the Attendance of Witnesses from Without a
State in Criminal Proceedings in one form or another, 11 U.L.A. 1.
Congressional Research Service
10

Federal Material Witness Statute: A Legal Overview of 18 U.S.C. 3144

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
subject to copyright protection in the United States. Any CRS Report may be reproduced and distributed in
its entirety without permission from CRS. However, as a CRS Report may include copyrighted images or
material from a third party, you may need to obtain the permission of the copyright holder if you wish to
copy or otherwise use copyrighted material.

Congressional Research Service
R41903 · VERSION 5 · UPDATED
11

Download PDF

Download EPUB

Revision History

Jun. 26, 2024

HTML · PDF

Jul. 1, 2011

HTML · PDF

Metadata

Topic areas

American Law

Intelligence and National Security

Report Type: CRS Report

Source: CRSReports.Congress.gov, EveryCRSReport.com

Raw Metadata: JSON