1.1                          A bill for an act
  1.2             relating to criminal procedure; authorizing procedures 
  1.3             for securing the appearance of material witnesses in 
  1.4             criminal cases and investigations; proposing coding 
  1.5             for new law in Minnesota Statutes, chapter 629; 
  1.6             repealing Minnesota Statutes 1996, sections 629.54; 
  1.7             and 629.55. 
  1.8   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.9      Section 1.  [629.551] [MATERIAL WITNESS; PROCEDURES FOR 
  1.10  COMPELLING ATTENDANCE AT HEARING.] 
  1.11     Subdivision 1.  [DEFINITIONS.] As used in this section, the 
  1.12  following terms have the meanings given them. 
  1.13     (a) "Material witness" means a person who has information 
  1.14  material to the prosecution or defense of a crime. 
  1.15     (b) "Material witness order" means a court order fixing the 
  1.16  conditions necessary to secure the appearance of a person who 
  1.17  has information material to the prosecution or defense of a 
  1.18  pending criminal complaint or indictment or a pending criminal 
  1.19  investigation before a grand jury and who is unlikely to respond 
  1.20  to a subpoena. 
  1.21     Subd. 2.  [APPLICATION FOR MATERIAL WITNESS ORDER.] (a) A 
  1.22  prosecutor or a defendant in a criminal action may apply to the 
  1.23  district court for an order compelling a person to appear at a 
  1.24  material witness hearing if there is probable cause to believe 
  1.25  that: 
  1.26     (1) the person has information material to the prosecution 
  2.1   or defense of a pending criminal complaint or indictment or a 
  2.2   pending criminal investigation before a grand jury; and 
  2.3      (2) the person is unlikely to respond to a subpoena. 
  2.4   The application may be accompanied by an application for an 
  2.5   arrest warrant when the applicant has probable cause to believe 
  2.6   that the person will not appear at the material witness hearing 
  2.7   unless arrested. 
  2.8      (b) The application shall include a copy of any pending 
  2.9   criminal complaint or indictment and an affidavit containing: 
  2.10     (1) the name and address of the person alleged to be a 
  2.11  material witness; 
  2.12     (2) a summary of the facts believed to be known by the 
  2.13  alleged material witness and the relevance of these facts to the 
  2.14  pending criminal case or investigation; 
  2.15     (3) a summary of the facts supporting the belief that the 
  2.16  person possesses information material to the pending criminal 
  2.17  case or investigation; and 
  2.18     (4) a summary of the facts supporting the claim that the 
  2.19  alleged material witness is unlikely to respond to a subpoena. 
  2.20     (c) If the application requests an arrest warrant, the 
  2.21  affidavit shall explain why an immediate arrest is necessary. 
  2.22     Subd. 3.  [ORDER TO APPEAR.] If the judge finds probable 
  2.23  cause to believe that a material witness order should be issued 
  2.24  against the person named in the application, the judge may order 
  2.25  the person to appear at a hearing to determine whether the 
  2.26  person should be declared a material witness.  The order to 
  2.27  appear and a copy of the application shall be served personally 
  2.28  on the alleged material witness at least 48 hours before the 
  2.29  hearing, excluding weekends and holidays, unless the judge 
  2.30  adjusts the time period for good cause.  The order shall advise 
  2.31  the person of the time and place of the hearing and of the 
  2.32  person's right to be represented by an attorney or to have an 
  2.33  attorney appointed at public expense if the person cannot afford 
  2.34  one. 
  2.35     Subd. 4.  [ARREST WARRANT.] (a) The judge may issue an 
  2.36  arrest warrant if the judge finds, by clear and convincing 
  3.1   evidence, that the person named in the application will not be 
  3.2   available as a witness unless taken into custody immediately.  
  3.3   The arrest warrant shall require that the person be brought 
  3.4   before the judge immediately after the arrest.  
  3.5      (b) When the person is brought before the judge, the judge 
  3.6   shall inform the person of the reason for the arrest, the time 
  3.7   and place of the material witness hearing, and the person's 
  3.8   right to an attorney and to have an attorney appointed at public 
  3.9   expense if the person cannot afford one. 
  3.10     (c) The judge shall set conditions for the person's release 
  3.11  unless the judge finds, by clear and convincing evidence, that 
  3.12  the person will not be available as a witness unless confined.  
  3.13  If the judge makes this finding, it may order that the person be 
  3.14  confined until the material witness hearing is held, provided 
  3.15  that the hearing is held within 48 hours of the arrest, 
  3.16  excluding weekends and holidays. 
  3.17     Subd. 5.  [ARREST WITHOUT WARRANT.] (a) A peace officer may 
  3.18  arrest an alleged material witness without a warrant only if: 
  3.19     (1) the arrest occurs before the filing of a criminal 
  3.20  complaint or indictment or the initiation of a criminal 
  3.21  investigation before a grand jury; and 
  3.22     (2) the peace officer has probable cause to believe that: 
  3.23     (i) a crime has been committed; 
  3.24     (ii) the alleged material witness has information material 
  3.25  to the prosecution of that crime; 
  3.26     (iii) the alleged material witness will refuse to cooperate 
  3.27  with the officer in the investigation of that crime; and 
  3.28     (iv) the delay necessary to obtain an arrest warrant or 
  3.29  order to appear would result in the unavailability of the 
  3.30  alleged material witness. 
  3.31     (b) Following the warrantless arrest of an alleged material 
  3.32  witness, the peace officer shall bring the person immediately 
  3.33  before a judge.  The judge shall determine whether there is 
  3.34  probable cause to believe that: 
  3.35     (1) the person is a material witness; and 
  3.36     (2) a criminal complaint or indictment will be issued or a 
  4.1   criminal investigation will be commenced by a grand jury within 
  4.2   48 hours of the person's arrest, excluding weekends and holidays.
  4.3   If the judge finds a probable cause basis for both these facts, 
  4.4   the judge shall proceed as if an application for a warrant had 
  4.5   been made under subdivision 4. 
  4.6      Subd. 6.  [MATERIAL WITNESS HEARING.] (a) An alleged 
  4.7   material witness has the following rights at the material 
  4.8   witness hearing: 
  4.9      (1) the right to be represented by an attorney and to have 
  4.10  an attorney appointed at public expense if the person cannot 
  4.11  afford one; 
  4.12     (2) the right to be heard and to present evidence and 
  4.13  witnesses; 
  4.14     (3) the right to have all of the evidence considered by the 
  4.15  judge in support of the application; and 
  4.16     (4) the right to confront and cross-examine witnesses. 
  4.17     (b) The judge shall determine that a person is a material 
  4.18  witness if the judge finds at the hearing that there is probable 
  4.19  cause to believe that the person has information material to the 
  4.20  prosecution or defense of a pending criminal complaint or 
  4.21  indictment or a criminal investigation before a grand jury and 
  4.22  that the person is unlikely to respond to a subpoena. 
  4.23     Subd. 7.  [CONDITIONS OF RELEASE; CONFINEMENT.] (a) Except 
  4.24  as otherwise provided in paragraph (b), the judge shall set 
  4.25  conditions of release for a material witness or a person held on 
  4.26  application for a material witness order.  These conditions of 
  4.27  release are governed by rule 6.02 of the Rules of Criminal 
  4.28  Procedure and shall be the least restrictive conditions 
  4.29  available to ensure the person's appearance as a material 
  4.30  witness. 
  4.31     (b) The judge may order that the material witness be 
  4.32  confined if the judge finds, by clear and convincing evidence, 
  4.33  that confinement is the only method that will secure the 
  4.34  material witness's appearance.  However, the judge also shall 
  4.35  fix an amount of money bail without other conditions upon which 
  4.36  the person may obtain release.  A person who is confined under 
  5.1   this paragraph shall be paid witness fees and expenses as 
  5.2   provided by section 357.24.  When the interests of justice 
  5.3   require, the judge may order that additional payments be made to 
  5.4   a confined material witness, not exceeding the person's actual 
  5.5   financial loss resulting from the confinement.  The party 
  5.6   obtaining the material witness order shall bear the cost of 
  5.7   confinement and payment unless the party is indigent. 
  5.8      Subd. 8.  [DEPOSITION.] A material witness who is confined 
  5.9   may apply to the district court for an order directing that a 
  5.10  deposition be taken to preserve the witness's testimony.  After 
  5.11  the deposition is taken, the judge shall vacate the terms of 
  5.12  confinement contained in the material witness order and impose 
  5.13  the least restrictive conditions available to secure the 
  5.14  appearance of the material witness. 
  5.15     Subd. 9.  [ORDERS APPEALABLE.] A material witness order is 
  5.16  a final order for purposes of appeal but, on motion of the 
  5.17  material witness, may be reconsidered at any time by the court 
  5.18  that issued the order. 
  5.19     Sec. 2.  [REPEALER.] 
  5.20     Minnesota Statutes 1996, sections 629.54; and 629.55, are 
  5.21  repealed.