Material Witness Detentions After al-Kidd

Wes Oliver

Widener University - School of Law

November 2, 2011

Kentucky Law Journal, Forthcoming
Widener Law School Legal Studies Research Paper No. 11-26

The Supreme Court’s decision in Ashcroft v. al-Kidd was a tempest in a teapot. The Court concluded only that a witness was no less susceptible to arrest under the Federal Material Witness Statute if the government was interested in prosecuting the witness himself. Unremarkably under the holding, it is no more difficult to detain an al-Qaeda member who witnessed a crime than it is to detain an innocent bystander who witnessed a crime. The fact that a criminal suspect can be held, however, raises concerns beyond the scope of the narrow question before the Court. If the government’s real interest is bringing a case against the witness, the government will be far less circumspect in its decision to seek an arrest warrant for the witness and will not have an incentive to hold the witness in the least restrictive conditions. Vague standards that assume the government’s good faith may be sufficient when the prosecution’s principal interest is the witness’ effective testimony. These standards are insufficient when material witnesses are potentially suspects. The egregious facts of the al-Kidd case reveal that Congress must establish clearer criteria for the arrest and treatment of material witnesses.

Number of Pages in PDF File: 45

JEL Classification: K10

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Date posted: November 3, 2011 ; Last revised: November 4, 2011

Suggested Citation

Oliver, Wes, Material Witness Detentions After al-Kidd (November 2, 2011). Kentucky Law Journal, Forthcoming; Widener Law School Legal Studies Research Paper No. 11-26. Available at SSRN: http://ssrn.com/abstract=1953377 or http://dx.doi.org/10.2139/ssrn.1953377

Contact Information

Wes Oliver (Contact Author)
Widener University - School of Law ( email )
4601 Concord Pike
P.O. Box 7286
Wilmington, DE 19803-0474
United States
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