New Jersey Section 2C:104-2 – Application for material witness order

New Jersey’s Material Witness Law: Securing Testimony in Criminal Cases

New Jersey’s material witness statute, Section 2C:104-2, allows prosecutors or criminal defendants to apply for a court order to detain a witness who has material testimony but may not appear voluntarily at trial. This controversial law tries to balance the rights of witnesses against the need to secure critical testimony in criminal matters. However, critics argue it infringes on civil liberties and enables abuse. This article examines the key provisions, applications, and debates around New Jersey’s material witness law.

Overview of the Material Witness Statute

New Jersey’s material witness law permits prosecutors or defendants to apply for a “material witness order” if they can show:

• The witness has testimony material to the case, AND
• It may become “impracticable” to secure the witness’s presence by subpoena alone.

If issued, the order allows the witness to be detained as if they had been arrested, possibly until the time of trial. The law tries to balance the rights of witnesses against the need for key testimony in criminal trials. However, critics argue it violates due process and enables abuse.

Applying for a Material Witness Order

To apply for an order, the prosecutor or defendant files an affidavit explaining why the witness’s testimony is material and why a subpoena would not guarantee their appearance^[1]. “Material” means directly relevant to determining guilt or punishment. The applicant must also explain why they have “reasonable grounds” to think the witness may flee or make themselves unavailable for the trial^[2].

If convinced, the judge issues a “material witness order” allowing the witness’s arrest and detention. Detention typically occurs in jail along with other pretrial detainees. The law does not permit witnesses to be housed alongside convicted prisoners. Witnesses detained under the law must also receive the same privileges as other detainees including bail eligibility, communication access, visitation, and mandatory court reviews of their detention status^[1].

Concerns Around Material Witness Laws

Defense lawyers and civil rights advocates have strongly criticized material witness laws as ripe for abuse. While these laws intend to facilitate testimony, critics argue they enable imprisonment of innocent witnesses for prolonged periods. There are three main areas of controversy:

Infringement of Civil Liberties

The ACLU has called material witness statutes “an end run around constitutional protections”^[3]. By permitting arrest and detention of witnesses who are not even accused of crimes, critics argue these laws violate:

• Due Process: Imprisoning innocent witnesses contravenes principles of fundamental fairness and due process^[4].
• Unreasonable Search and Seizure: Arresting witnesses without probable cause of criminal activity defies constitutional limits on search and seizure^[3].

Prolonged or Abusive Detention

While material witness laws permit judges to set “reasonable” bail and limit detention, lengthy imprisonment still occurs. For example, one case involved a Jordanian immigrant detained as a witness for three years before being deported without testifying^[5]. Prolonged detention infringes liberty especially when witnesses have key family or work obligations.

Use as a Pretext for Other Investigations

In several cases, prosecutors allegedly used material witness warrants as a pretext to detain people they wanted to investigate for suspected terrorist links post-9/11. A Human Rights Watch report analyzed over 70 such cases where the government had no serious intent to call the witnesses at trial. Rather they faced intense interrogation about suspected terrorism links. Courts later ruled this violated due process rights against pretextual arrest and detention.

Key Case Precedent on Material Witness Laws

Several court rulings have helped clarify and limit the use of material witness statutes:

• Right to a Detention Hearing: A federal appeals court ruled that detained witnesses have a right to a prompt hearing where the government must prove continued detention is justified.
• No Indefinite Detention: The Supreme Court has ruled material witness detention cannot continue for an “unreasonable or excessive” period when the government does not pursue criminal charges.
• No Pretense for Custodial Interrogation: As mentioned earlier, courts have prohibited detaining people as witnesses to buy time for general criminal investigation or interrogation unrelated to their purported testimony.

Reform Efforts Target Material Witness Laws

Various advocacy groups have pushed to reform or limit material witness laws. For example:

• The ACLU published a report urging states to adopt stringent safeguards against prolonged detention of witnesses. They argue strict time limits must govern detention.
• A bill introduced in Congress would have prohibited federal agencies from arresting witnesses solely due to immigration status concerns. However, it did not pass.
• Some scholars argue that rather than detention, courts could order less restrictive alternatives. Options include electronic monitoring, home confinement, work release or counseling mandates.

Reform advocates want tighter safeguards to ensure material witness laws enhance justice rather than erode civil rights. But others argue current limits strike the right balance in securing essential testimony. This debate likely will continue as states try to refine their material witness statutes.