US Law Prof. on Hashemi’s Arrest: Custody without Cause Violates 4th Amendment

“The Fourth Amendment forbids ‘unreasonable’ seizures’,” Ricardo J. Bascuas told Tasnim.

He added, “So by definition, there is never good cause to believe a witness probably committed a crime. So by definition, there is never probable cause to believe a witness committed a crime and it is established that incarceration without probable cause violates the Fourth Amendment. Thus, the amendment plainly forbids arresting a witness”.

Professor Ricardo J. Bascuas teaches in the areas of evidence, criminal procedure, and international criminal law. He created and directs the School of Law's Federal Appellate Clinic, which, in partnership with the Federal Public Defender's Office for the Southern District of Florida, represents indigent defendants before the United States Court of Appeals for the Eleventh Circuit. Professor Bascuas is the co-author of the casebookInvestigative Criminal Procedure: A Contemporary Approach. In 2014, the Faculty Senate awarded him the University’s Outstanding Teaching Award.

Following is the text of the interview.

Tasnim: In one of your recent interviews on Marzieh Hashemi’s arrest and imprisonment, you said the constitutionality of the material witness law has “never been meaningfully tested” in the US and that “the government only relies on it when they need a reason to arrest somebody but they don’t have one”. Please explain this.

Bascuas: A “material witness” is someone with information about a pending proceeding. In the 19th century, when courts were not open year-round, a court could summon a witness and ask the witness to promise to appear at a later court session, which might be months away. The witness was made to appear so that there would be a clear record in court that the witness was told of the future court date. If the witness recognized his obligation to appear — gave what the law called his “recognizance” — the witness would be released. Hence the phrased, “released on his own recognizance.” A witness could legally be detained only if the witness refused to promise to appear because that is a contempt of court. The common law imposes a duty on everyone to testify in court when summoned — unless the law creates an exception or “privilege,” as for example the Fifth Amendment creates a privilege against self-incrimination. 

Because material witness arrests became less necessary over time, the law governing them was forgotten and distorted and now the government thinks it can arrest anyone it wants to label a witness without having to give any reasons. The government’s understanding of the law has never been meaningfully tested in court. The reason for that is that United States courts, like all common-law courts, decide only the legal questions that lawyers present. For many reasons, most lawyers for material witnesses have little reason to argue that it is always illegal to jail a person as a material witness because there is usually an easier way to get their client out of jail. Also, some lawyers may just assume that, if judges and prosecutors believe they are allowed to jail witnesses, they must be correct.

So, the argument that this is illegal is very seldom made. The argument is this: The Fourth Amendment forbids “unreasonable” seizures. An unreasonable seizure is one that is irrational or arbitrary — i.e., based on hunches or gut feelings rather than facts establishing that the person to be arrested probably committed a crime. By definition, there is never good cause to believe a witness probably committed a crime. So, by definition, there is never probable cause to believe a witness committed a crime and it is established that incarceration without probable cause violates the Fourth Amendment. Thus, the amendment plainly forbids arresting a witness.

Tasnim: Can US security forces put a potential material witness behind the bars for any reason and without any charges?

Bascuas: They can until a court tells them they can’t and that has not happened yet for reasons explained above.