Release or detention of a material witness

(a)

Amendments to title 18

Section 3144 of title 18, United States Code, is amended to read as follows:

3144.

Release or detention of a material witness

(a)

Arrest of material witness

(1)

In general

A judicial officer may order the arrest of a person as a material witness, if it appears from an affidavit filed by a party in a criminal case before a court of the United States, or by an attorney for the Government in a matter occurring before a Federal grand jury, that there is probable cause to believe that— (A)the testimony of such person is material in such case or matter; and (B)the person has been served with a summons or subpoena and failed or refused to appear as required. (2)

Exception

A judicial officer may waive the summons or subpoena requirement described in paragraph (1)(B), if the judicial officer finds by clear and convincing evidence that the service of a summons or subpoena— (A)is likely to result in the person fleeing; or (B)cannot adequately secure the appearance of the person as required. (b)

Warrant for material witness

(1)

Requirements

A warrant issued under subsection (a) shall— (A)contain the name of the material witness or, if the name of such witness is unknown, a name or description by which the witness can be identified with reasonable certainty; (B)specify that the testimony of the witness is sought in a criminal case or grand jury proceeding; (C)command that the witness be arrested and brought without unnecessary delay before a judicial officer; (D)inform the witness of the witness’s right to retain counsel or to request that counsel be appointed if the witness cannot obtain counsel; and (E)be signed by a judicial officer. (2)

Execution of warrant

(A)

Arrest of witness

A warrant issued under subsection (a) shall be executed by arresting the material witness. (B)

Warrant to be provided to witness

(i)

In general

Upon arrest, an officer possessing the warrant shall show such warrant to the material witness. (ii)

Warrant not in possession of arresting officer

If an officer does not possess the warrant at the time of arrest of a material witness, an officer— (I)shall inform the witness of the existence and purpose of the warrant; and (II)at the request of the witness, shall provide the warrant to the witness as soon as possible. (3)

Return of warrant

(A)

After execution

After executing a warrant issued under subsection (a), an officer shall return the warrant to the judicial officer before whom the material witness is brought in accordance with subsection (c). (B)

Unexecuted warrant

At the request of an attorney for the United States Government, an unexecuted warrant shall be brought back to and canceled by a judicial officer. (c)

Initial appearance

(1)

Appearance upon arrest

A material witness arrested pursuant to a warrant issued under subsection (a) shall be brought without unnecessary delay before a judicial officer. (2)

Place of initial appearance

The initial appearance of a material witness arrested pursuant to a warrant issued under subsection (a) shall be— (A)in the district of arrest; or (B)in an adjacent district if— (i)the appearance can occur more promptly there; or (ii)the warrant was issued there and the initial appearance will occur on the day of the arrest. (3)

Procedures

At the initial appearance described in paragraph (2), a judicial officer shall— (A)inform a material witness of— (i)the warrant against the witness, and the application and affidavit filed in support of the warrant; and (ii)the witness’s right to retain counsel or to request that counsel be appointed if the witness cannot obtain counsel; (B)allow the witness a reasonable opportunity to consult with counsel; (C)release or detain the witness as provided by subsection (d); and (D)if the initial appearance occurs in a district other than where the warrant issued, transfer the witness to such district, provided that the judicial officer finds that the witness is the same person named in the warrant. (d)

Release or detention

(1)

In general

Upon the appearance before a judicial officer of a material witness arrested pursuant to a warrant issued under subsection (a), the judicial officer shall order the release or detention of such witness. (2)

Release

(A)

In general

A judicial officer shall order the release of a material witness arrested pursuant to a warrant issued under subsection (a) on personal recognizance or upon execution of an unsecured appearance bond under section 3142(b), or on a condition or combination of conditions under section 3142(c), unless the judicial officer determines by clear and convincing evidence that such release will not reasonably assure the appearance of the witness as required. (B)

Testimony secured by deposition

No material witness may be detained because of the inability of the witness to comply with any condition of release if the testimony of such witness can adequately be secured by deposition. (3)

Detention

(A)

No reasonable assurance of appearance

If, after a hearing pursuant to the provisions of section 3142(f)(2), a judicial officer finds by clear and convincing evidence that no condition or combination of conditions will reasonably assure the appearance of a material witness as required by this section, such judicial officer may order that the witness be detained for a period not to exceed 5 days, or until the testimony of the witness can adequately be secured by deposition or by appearance before the court or grand jury, whichever is earlier. (B)

Extension of detention

(i)

In general

Subject to clause (ii), upon the motion of a party (or an attorney for the United States Government in a matter occurring before a Federal grand jury), the period of detention under subparagraph (A) may be extended for additional periods of up to 5 days, or until the testimony of a material witness can adequately be secured by deposition or by appearance before the court or grand jury, whichever is earlier. (ii)

Limit

The total period of detention under this subparagraph may not exceed— (I)30 days, where the testimony of the witness is sought in a criminal case; or (II)10 days, where the testimony of the witness is sought in a grand jury proceeding. (C)

Good cause required

A motion under subparagraph (B) shall demonstrate good cause for why the testimony of a material witness could not adequately be secured by deposition or by appearance before the court or grand jury during the previous 5-day period. (4)

Factors to be considered

A judicial officer, in determining whether a material witness should be released or detained— (A)shall take into account the available information concerning the history and characteristics of the witness, including the information described in section 3142(g)(3)(A); and (B)may consider challenges to the basis of the warrant. (5)

Contents of release order

A release order issued under paragraph (2) shall comply with the requirements of paragraphs (1) and (2)(B) of section 3142(h). (6)

Contents of detention order

A detention order issued under paragraph (3) shall comply with the requirements of section 3142(i), provided that a judicial officer shall direct that a material witness be held— (A)in a facility separate and apart, to the extent practicable, from persons charged with or convicted of a criminal offense; and (B)under the least restrictive conditions possible. (e)

Report

(1)

In general

Notwithstanding any other provision of law, the Attorney General shall provide to the Committees on the Judiciary of the Senate and the House of Representatives an annual report regarding the use of this section by the United States Government during the preceding 1-year period. (2)

Content of report

A report required under paragraph (1) shall include— (A)the number of warrants sought under subsection (a), and the number either granted or denied; (B)the number of material witnesses arrested pursuant to a warrant issued under subsection (a) whose testimony was not secured by deposition or by appearance before the court or grand jury, and the reasons therefore; and (C)the average number of days that material witnesses arrested pursuant to a warrant issued under subsection (a) were detained.

(b)

Amendment to Federal Rules of Civil Procedure

Rule 46(h) of the Federal Rules of Criminal Procedure is amended to read as follows:

(h)

Supervising detention pending trial

To eliminate unnecessary detention, the court must supervise the detention within the district of any defendants awaiting trial and of any persons held as material witnesses.