As the report shows. such misuse does more than just circumvent the requirement of probable cause for a criminal arrest. Suspects arrested as material witnesses are denied the basic protections guaranteed to criminal defendants. including the right to view any exculpatory evidence and to be able to challenge the basis for their arrest and incarceration. The report concludes that the misuse of the material witness law "threatens U.S. citizens and noncitizens alike because it reflects a lowering of the standards designed to protect everyone from arbitrary and unreasonable arrest and detention." The bill I introduce today will ensure that the material witness law is used only for the narrow purpose that Congress originally intended. to obtain testimony. and not to hold criminal suspects without charge when probable cause is lacking. First. the bill raises the standard that the government must meet to obtain a material witness warrant. Under current law. a judge may order the arrest of a material witness if there is probable cause to believe that securing his presence by subpoena may become "impracticable." Under the bill. there must be probable cause to believe that the witness has been served with a subpoena and failed or refused to appear as required. or clear and convincing evidence that the service of a subpoena is likely to result in the person fleeing or cannot adequately secure the appearance of the person as required.
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