A journalist was detained in the US on January 13. According to CBS, Ricardo J. Bascuas, a professor at the University of Miami School of Law says she should have been granted a court appearance by now.

How long can one be detained without a court hearing?


The linked news story says that the journalist was detailed as a material witness. according to 18 USC § 3144

If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person ...

Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure.

No specific time seems to be specified for which detention is allowed. What a court would consider "reasonable" would no doubt depend on the specific circumstances.

  • I don't disagree that this statute applies, but usually, even a material witness would be entitled to some sort of prompt appearance before a judge or magistrate, to determine that the material witness statute authorizes the detention and to set a review date, even though this isn't the usual criminal procedure context. A four day delay before such a hearing would almost surely be improper.
    – ohwilleke
    Jan 18 '19 at 1:03
  • 1
    I found a 2005 Human Rights Watch report: "One-third of the seventy post-September 11 material witnesses we identified were incarcerated for at least two months. Some endured imprisonment for more than six months, and one witness spent more than a year in prison. ... to go on a “fishing expedition” ... When there was no evidence of any wrongdoing, the Justice Department simply held witnesses until it concluded that it had no further use for them ..." Has it changed since then? Jan 18 '19 at 3:22
  • 2
    @KeithMcClary The statute hasn't been amended since then and there has been no SCOTUS decision on point. It could be there that has been case law in the lower courts since then interpreting what constitutes "reasonable period of time" under the statute.
    – ohwilleke
    Jan 18 '19 at 17:59

The Right To A Prompt First Appearance

Generally speaking, the deadline imposed by statute is more strict than the U.S. Constitutional requirement.

Many jurisdictions require that a first appearance before a magistrate or judge (also called an arraignment on a complaint) be held within 24 hours of arrest.

Almost all jurisdictions in the U.S. require that there be a first appearance within one or two days that the courts are open after an arrest (usually the day after the arrest unless it is made in the early morning hours, or on Monday if an arrest is made on a weekend, unless the courts are closed on Monday, in which case Tuesday).

See generally, Israel, Kamisar and LaFave, "Criminal Procedure and the Constitution" (1994) at pages 8-10.

The exceptions would typically involve exigent circumstances (e.g. someone arrested at sea or during a hurricane), or a federal government claim that someone is in military detention as an enemy combatant.

The usual and primary legal remedy if someone is detained too long without a first appearance (which is quite rare) is to have a "next friend" bring a habeas corpus action directed at the person holding the individual in custody (typically a sheriff in charge of a jail or a prison warden), while someone is denied a first appearance. This is basically a request for a judge to order a sheriff or prison warden to deliver the prison to a courtroom.

The other remedy (almost always after the fact) is to bring a civil action under Section 1983 alleging a violation of civil rights and claiming money damages against the individuals violating the prisoner's rights to a first appearance and anyone who has instituted an official policy (whether or not in writing) that has the effect of violating a prisoner's rights to a first appearance. The granting of a first appearance does not eliminate the right to money damages in these cases, but usually, the damages award will be very small (apart from attorneys' fees to a prevailing party) except in the most egregious cases. If an official policy is involved, usually this will be done in the form of a class action lawsuit seeking both money damages and an injunction requiring the government to change the policy.

The Right To Be Booked

In addition to the right to a first appearance there is also a statutory right (which probably also has a constitutional dimension) to be "booked" into a regular jail as soon as practicable (or "forthwith") after someone is arrested. In practice, this usually means that someone must be booked within an hour or two of an arrest, absent exigent circumstances (e.g. the patrol car is stuck in a snowbank).

The Right to A Speedy Trial

Once someone has had a first appearance and been charged, a trial must be held within deadlines that are almost always governed by statutes that are more strict than the constitutional requirement. The calculations are rather technical and are often waived with defendant consent.

Criminal defendants who are incarcerated pending trial are entitled to priority relative to criminal defendants who are granted pre-trial release either on bail or on personal recognizance or with a summons to appear.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.