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Material Witness and incommunicado detention update
By Kent V. Anderson
The main article was written in June
2002. The citations have been updated since then. However, there have also been
some significant case law developments. This short article deals with those.
Material witness detention
In July, a different judge from the Southern District of New York issued a
decision that disagreed with the holding in United States v. Awadallah III.1
In In re Material Witness Warrant,2 Judge Michael Mukasey
held that 18 U.S.C. §3144 does authorize the government to detain material
witnesses and there is no question about its constitutionality. Judge Mukasey
found that the term “criminal proceeding” was not ambiguous and obviously
referred to everything from the investigatory stage of a case on.3
He also held that even if the term
“criminal proceeding” in Section 3144 is ambiguous, it must be interpreted to
include grand jury proceedings. He claimed that the finding to this effect in Bacon
v. United States,4 was a holding instead of dicta even though the
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