Reporting a crime may be an important civic duty, but for some witnesses it can be unfairly costly in money and time. Take the case of Titus Ward, a migrant farm worker from New Orleans who witnessed a homicide in Rhode Island. When he reported it to authorities, bail of $5,000 was set against his release to assure his presence at the defendant's trial. When he couldn't raise the money, he was locked up in the state penitentiary with convicted felons and forced to wear prison clothing. It was only when he petitioned the Rhode Island Supreme Court that he was finally released 158 days later.
While jailing the witness to be sure he stays around for the trial is not exactly a common practice, neither is Mr. Ward's case an isolated example. It happens often in federal immigration cases when illegal aliens are called on as witnesses in smuggling incidents and sometimes in state criminal cases when a witness is from out of state.
For instance, four workers with a traveling carnival witnessed a murder in Iowa. They were jailed for three months and released only after the defendant pleaded guilty. They received no monetary compensation for the time in jail or even for the day in court because they were never called on as witnesses.
"It made the whole wait for nothing," says Ronald L. Carlson, a lawyer appointed by the judge in that case to represent the witnesses. Currently a professor of law at Washington University in St. Louis, he has been involved ever since the Iowa case more than a decade ago in what is largely a one-man crusade to reform state material-witness laws dating back to the mid-1800s.
He points out that it is still possible under generally "archaic" laws in 45 states to put an innocent witness in jail for an indefinite period against his will. The effect, Professor Carlson argues, is costly to the taxpayer and inhibiting to witnesses.
"It's enough to discourage participation in the criminal justice system," he says. "Sometimes the defendant is out on bail and the witness to the crime is locked up in cold storage. . . . Many witnesses are not even granted the rights given to criminal suspects."
Professor Carlson suggests that the laws, passed in the days when travel was more difficult, now are used largely for the convenience of lawyers for the prosecution. He wants them to be made more humane with stronger safeguards for the rights of witnesses.
He has proposed a model law for state adoption which would limit detention time without a court hearing for witnesses to no more than five days. The law also would require prosecutors to move quickly to get a sworn statement from witnesses by stenographer, tape recording, film, or videotape with all parties to the case present and able to cross-examine. The witness would still be expected and encouraged to show up in court for the trial.
If the court decides the witness should be held in custody for other reasons, the Washington University law professor suggests that the person be held separately from those convicted or accused of crimes and entitled to the same monetary fee for time in jail as in court.
Michigan already has made some changes based on that model, according to Professor Carlson, and legislators in Maryland and Pennsylvania ar currently studying it.
Actually, a number of states have taken small steps in the direction of fairer treatment for material witnesses. Fourteen states, for instance, now provide compensation for witnesses for time spent in jail. And 20 states have authorized lawyers to take depositions from witnesses in advance of the trial as a way of preserving testimony.
Compared with most state witness laws, the federal law is considered more progressive and generally more consistent in providing representation for witnesses and sizable fees for time spent in custody awaiting trial. But Professor Carlson says he thinks much in the federal law is ripe for reform as well.
He points to the fact that the average period of holding a material witness by federal authorities is 48 days and says that the federal budget for witness fees, aside from the federal witness protection program, has been moving steadily upward.
Certainly the concept of videotaping material witness testimony is on the rise in both federal immigration and state criminal cases. One ongoing experiment of the American Bar Association's Action commission to Reduce Court Costs and Delay, for instance, calls for videotaping the statements of complaining witnesses in criminal cases.
a similar experiment conducted in 10 districts recently by the Federal Judicial Center has been regarded as particularly cost effective and successful in taking advance testimony from illegal aliens in border areas in migration cases. Carl Imlay, general counsel for the center and for the Administrative Office of the US Courts, says the hope now is to persuade the Just ice Department to continue the experiment on a broader scale