Document Type



Ohio State Journal of Criminal Law




After the September 11 terrorist attacks, the Justice Department detained scores of allegedly suspicious persons under a federal material witness statute--a tactic that provoked a great deal of controversy. Most critics assume that the abuse of material witness laws is a new development. Yet, rather than being transformed by the War on Terror, the detention of material witnesses is a coercive strategy that police officers across the nation have used since the nineteenth century to build cases against suspects. Fears of extraordinary violence or social breakdown played at most an indirect role in its advent and growth. Rather, it has long been used to obtain prosecution evidence in ordinary cases of murder, robbery, prostitution, and other street crimes. Historically, no stark divide between the innocent witness and the suspected criminal existed in the minds of the police. Indeed, material witness detention contributed to the rise of incommunicado interrogation and numbered among the tactics identified in the Wickersham Commission's expose of the third degree in 1931.

This Essay demonstrates that the story of material witness detention is one of stasis, not of change. For more than a century, the field practices of police and magistrates have been unresponsive to reforms in statutory and constitutional law or to sporadic public pressure on behalf of detainees deemed to have knowledge of a crime. In telling such a story, this Essay seeks, not to defend the Justice Department, but to suggest that intense scholarly focus on September 11 as a watershed in the history of criminal procedure obscures ways in which the gradual consolidation of governmental power over more than a century has fostered an increasingly coercive and secretive relationship between the individual and the police.


"Originally published in the Ohio State Journal of Criminal Law."