Alien Material Witness and the Law (From Report From the National Hispanic Conference on Law Enforcement and Criminal Justice, P 527-538, 1981 - See NCJ-78060)

• NCJ Number: 78074
• Author(s): L R Yanez
• Date Published: 1981
• Length: 11 pages
• Publication Format: Document
• Language: English
• Country: United States of America
• Note: Microfiche version of this document is under NCJ-78060.

Annotation

Legal issues involved in the handling of alien material witnesses are identified, and recommendations are offered for evaluating the legal aspects of any given case.

Abstract

Case studies show that when an alien is taken into custody as a material witness, a determination about whether detention is necessary is not made on an individual basis pursuant to the Bail Reform Act. The determination that the alien is a poor bail risk is arbitrarily and summarily made solely on the person's alien status. Any information regarding right to counsel is given in such a psychologically coercive and misleading fashion that the anxious alien is virtually denied any choice in the matter. Detention runs from 1 month to 1 year, in spite of requirements in the Federal Rules of Criminal Procedure that a biweekly reporting be made stating reasons why the witness should not be released. The material witness statute requires that depositions be taken to avoid unreasonable detention, but generally the U.S. Attorney's Office prefers live witnesses to depositions. It is difficult for witnesses to assert any rights pursuant to any of the cited provisions of law in situations where no charges have been filed against them, and where witnesses know that to assert rights is to ensure that criminal charges will be filed to keep them in detention. A legal strategy for aiding alien material witnesses should begin with an inquiry about the witness's particular status of the witness and continue with a determination of the status of the principal case. The alien's attorney should then explore the potential for entering into a stipulation between the defendant's counsel and the U.S. Attorney regarding the witness's testimony. In the absence of a stipulation, counsel may wish to proceed by filing a motion to depose and release pursuant to 18 U.S.C., Section 3149 and Federal Rules of Criminal Procedure. If the witness has been held for an unreasonable length of time and the attorney has decided to represent the witness in any subsequent expulsion proceedings, the only remedy may be the filing of a petition for a writ of habeas corpus. Twenty reference citations are listed. (Author abstract modified)