Material Witness - Decision and Detention

[John Truman]

My question involves police conduct in the State of: California.

1. What factors do the police take into account when deciding whether or not a person is a material witness?
2. Are all material witnesses detained by the police? In what circumstances do the police detain a material witness?
3. Who makes the decision to detain and who makes the actual arrest?
4. Is a warrant necessary when a material witness is detained by the police and how difficult is it to obtain such a warrant?
5. For how long may a material witness be detained?
6. Does a material witness have the same right of access to counsel as a suspect under arrest?

This looks like six questions to me. Hope that's okay!

[Mr. Knowitall]

Per statute,

(a) If a witness, required to enter into an undertaking to appear and testify, either with or without sureties, refuses compliance with the order for that purpose, the magistrate shall commit him or her to prison until he or she complies or is legally discharged.

(b) If a witness fails to appear at the preliminary hearing in response to a subpoena, the court may hear evidence, including testimony or an affidavit from the arresting or interviewing officer, and if the court determines on the basis of the evidence that the witness is a material witness, the court shall issue a bench warrant for the arrest of the witness, and upon the appearance of the witness, may commit him or her into custody until the conclusion of the preliminary hearing, or until the defendant enters a plea of nolo contendere, or the witness is otherwise legally discharged. The court may order the witness to enter into a written undertaking to the effect that he or she will appear and testify at the time and place ordered by the court or that he or she will forfeit an amount that the court deems proper.

(c) Once the material witness has been taken into custody on the bench warrant he or she shall be brought before the magistrate issuing the warrant, if available, within two court days for a hearing to determine if the witness should be released on security of appearance or maintained in custody.

(d) A material witness shall remain in custody under this section for no longer than 10 days.

(e) If a material witness is being held in custody under this section the prosecution is entitled to have the preliminary hearing proceed, as to this witness only, within 10 days of the arraignment of the defendant. Once this material witness has completed his or her testimony the defendant shall be entitled to a reasonable continuance.

The determination would be made based upon available evidence, on a case-by-case basis.

[John Truman]

Thanks for the reply. May I ask some additional, related questions:

Regarding your final comment on my original question, which particular officer (detective, lieutenant of detectives???) makes the decision?

Next, if the police think a witness may either abscond or pass information to a suspect, then:

1 May the police take the witness into immediate custody?
2 Who, among the police, must think it's necessary so to do?
3 Could this happen without a warrant?
4 For how long could the witness be held?
5 How long could the witness be held before he or she was allowed access to his or her attorney?
6 What remedy does a witness have in circumstances where he or she considers the police have acted beyond their authority?
7 If a person is held in the circumstances I have described (assuming he or she can be), does it go on that person's record?

If this is all explained somewhere in the penal code and I've been too dumb to find it, please point me to it if it's easier than answering here. Thanks either way.

[PTPD22]

Do you have an actual incident or circumstance that you wand advice on? Or, are you just trying to find answers to you midterm exams without having to actually study?

[John Truman]

Neither. But if there's a study document online (a code, a rules and procedure manual, etc,) that you can point me to, I'd appreciate it. I've never shirked work before and I'm too old to change. But I intend to die before I take any more exams.

As I've explained before on this site, I'm interested in the balance between the rights of the individual and the rights of the many, which often come head-to-head in circumstances where police officers are involved. I'm disinclined to believe what I see in television or read in books, so I ask the experts. The consequence of this is that I don't, as a rule, quote specific cases. Indeed. if I had a specific case that involved me personally, I think I'd consult an attorney.

I (unintentionally) upset the BSIS by suggesting (not insisting) that its attitude towards working-towards-being-but-not-yet-being-licensed PIs' carrying a weapon might infringe such persons' constitutional rights (and be discriminatory, since no-on else is treated like it) and I hope I'm not offending anyone on this site. Gaining knowledge makes me happy, and I incline to the view that the pursuit of happiness is my inalienable right...

Please help me if you can. Obviously, it's your choice.

"Ignorance is the root of all evil and all suffering." Gautama Buddha.

[aardvarc]

Generally speaking, it's not up to police to determine who is or isn't a material witness - that is a determination made by the prosecutor. The extent to which a material witness would be sought or held is entirely dependent upon specific circumstances of the specific case (as Mr. K noted above) and the treatment or holding of such witnesses is at the discretion of the JUDGE, who would be the one issuing the hold on the person (this is how checks and balances of power work).

[John Truman]

Thank, that helps.

Am I correct in assuming that where a witness is considered by the police when first interviewed, let's say at his or her home, to be likely to communicate with a suspect, then the police are able to detain the witness long enough to get a ruling from a judge?

I've seen how they do it on Rockford, but I have the feeling that may not be the truth...

[aardvarc]

Unless it's a major federal case involving the Marshall's Office, FBI, or similar, no. Police will simply take the identification information on the subject and let the prosecutor deal with the rest. If you're asking if police can stop a witness from having communication with a suspect, no, they generally can't (free speech, right to association, and all those Constitutional barriers). With that said, there's nothing to stop police from putting a tail on either the witness, the suspect, or both - but again due to the expense and manpower demands, it would have to be some really spectacular case. Police generally have better things to do than keep track of witnesses - if witnesses are subpoena'd and don't appear, the expectation is that the court would put out a warrant for that witness.