The Rise and Fall of Material Witness Detention in Nineteenth Century New York

THE RISE AND FALL OF MATERIAL WITNESS DETENTION IN NINETEENTH CENTURY NEW YORK Wesley MacNeil Oliver* Table of Contents I. Introduction ...................................................................................................... 727 II. The Long-Dormant Authority of Magistrates to Detain Witnesses ..............731 III. Professional Law Enforcement Makes Witness Detention a Practical Reality..............................................................................................738 The Earliest Known Witnesses Detained........................................................739 The Early Effects of a Professional Police Force on Witness Detention..............................................................................742 Increased Efficiency Correlates with More Detained Witnesses...................746 Police Presence and Witness Detention After Legislative Investigation and Reform .......................................................................749 Witness Detention Again Increases After 1870 Police Reorganization ........................................................................................760 IV. Decades of Unsuccessful Effort at Reform ....................................................763 The Movement for Reform in the Early 1840s................................................765 New York Constitutional Convention of 1846 ...............................................767 Proposed Code of Criminal Procedure...........................................................771 A Decade of Silenced Reform and Ultimate Success......................................773 V. Conclusion.......................................................................................................780 * Climenko/Thayer Lecturer on Law, Harvard Law School; J.S.D. candidate, Yale Law School. B.A., J.D., University of Virginia; LL.M. Yale Law School. My thanks to Alan Dershowitz, Bob Gordon, Andy Kaufman, Kate Stith, Bill Stuntz, John Witt and participants at workshops at Harvard and SMU for very helpful comments on previous drafts. 726 Material Witness Detention 727 I. Introduction The detention of witnesses in New York City in the nineteenth century largely began and ended because of the city’s professional police force, first organ- ized midway through the century. The city’s system of constables and night- watchmen in the first half of the nineteenth century lacked the manpower or incen- tives to aggressively prosecute crime. Though statutes long permitted magistrates to detain witnesses if there was a risk they would not appear at trial, few if any persons identified as witnesses were brought to magistrates by these early, largely in- effective, officers.1 As the city developed a professional police force, more aggressive (and questionable) investigative tactics began to be used.2 As the force grew in manpower and efficiency, witnesses were increasingly arrested by officers and brought before magistrates who committed them to jail.3 Ultimately, these rising numbers proved counter-productive. The police found that citizens were becoming increasingly unwilling to speak with officers.4 As the public became increasingly aware that knowledge of a crime could lead to incarceration, the police asked the legislature to put an end to the detention of witnesses.5 The legislature obliged the police request about a decade after it was made and abolished the detention of material witnesses in 1883.6 1 See 1787 N.Y. Laws 8; 1801 N.Y. Laws 70; 1 LAWS OF THE STATE OF NEW YORK 304 (James Kent and Jacob Radcliff revisors, 1802); 2 LAWS OF THE STATE OF NEW YORK 507 (William P. Van Ness and John Wood- word revisors, 1813); 2 N.Y. REV. STAT., pt. 4, ch. 2 tit. 2, §§ 21-22 (1829); 2 N.Y. REV. STAT., pt. 4, ch. 2, tit. 2, §§ 21-22 (1836). The New York statutory revision and its codification scheme is described well by ERNEST HENRY BREUER, THE NEW YORK REVISED STATUTES—1829: ITS SEVERAL EDITIONS, REPORTS OF THE REVISERS, COMMENTARIES AND RELATED PUBLICATIONS UP TO THE CONSOLIDATED LAWS OF 1909 (1961). There was some dispute in the nineteenth century about whether the statutes prior to the one enacted in 1829 actually permitted the detention of witnesses. See discussion infra at notes 18-20 and accompanying text. New Yorkers certainly weren’t the only Americans in the nineteenth century who were subject to incarceration merely because they had the misfortune of witnessing a crime. See Witnesses Not to Be Impris- oned, NEW YORK TIMES, Jan. 7, 1878, at 2 (noting proposal to provide for examination of witnesses in lieu of detention in California); Treatment of Witnesses, NEW YORK TIMES, May 13, 1883, at 8 (noting that Illi- nois recently abolished the detention of witnesses); S. CROSSWELL & R. SUTTON, DEBATES AND PROCEEDINGS IN THE NEW YORK STATE CONSTITUTIONAL CONVENTION 815 (1846) (describing witness detention in Maryland). 2 This article is taken from one of the chapters of my pending J.S.D. dissertation at Yale University that examines how the creation of professional police forces created civil liberties concerns not contemplated by the Framers and how society responded to these new threats to liberty. 3 See discussion at infra notes 59-126 and accompanying text. 4 See discussion at infra notes 174-76 and accompanying text. 5 See BOARD OF METROPOLITAN POLICE, REPORT, Jan. 16, 1868, ASSEMB. DOC. 20 at 80. By the time witness detention was forbidden in New York, there was a perception that witness detention was fairly com- mon. See 1 N.J. LAW J. 258, 258 (1878) (observing that “[i]t is no uncommon occurrence to imprison one, whose only crime is that he has been the innocent spectator of the commission of some crime, for weeks or even months; and in one case we have in mind, a witness was incarcerated for two years.”) The reality is that no more than 600 persons were ever held as material witnesses in any given year and were thus a very small percentage of all the persons interviewed or even ultimately arrested by New York police officers in the nineteenth century. See discussion infra at note 121-122 and accompanying text. 6 1883 N.Y. Laws 416. In 1904, the New York legislature restored the power to detain material witnesses. N.Y. CODE CRIM. PRO. 618-b (1904). See also People ex rel. Fusco (Galgano) v. Ryan, 124 N.Y.S.2d 690, 699 (S.Ct. Bronx Co. 1953) (noting origins of the twentieth century material witness statute). Vol. 1 NYU Journal of Law & Liberty No. 2 728 Wesley MacNeil Oliver 2005 Very sympathetic stories were told about completely innocent persons’ be- ing detained for long periods of time in nineteenth-century New York, stories that surely made citizens afraid to speak to police. A woman visiting New York City in 1846 had a bundle of her clothes stolen; when she reported the incident at the local police office, she was imprisoned as a witness against an undiscovered thief for nine months.7 A young woman who alleged she had been raped was held in de- fault of bail; the alleged rapist went free on bond.8 A man who witnessed the mur- der of his wife was held for months in the House of Detention for Witnesses.9 These stories, however, were caricatures of the typical witness detention. Most witnesses in the nineteenth century were detained for approximately ten days or less.10 The police were therefore not arresting witnesses to preserve their trial testimony; cases could not have come to trial in ten days. These were strategic detentions either to extract information from witnesses or to hold them while it was determined whether to charge them with crimes. Not surprisingly, the number of witnesses detained overlapped with more aggressive policing and legislative criti- cism of the practice of detaining suspects “on suspicion” without any charge.11 The legislature had not authorized detentions of suspects without charges. Detaining witnesses allowed police to use a method approved by the legislature to hold uncooperative persons without a charge. Suspects could be interrogated in a coercive environment before adequate evidence existed to charge them—and their flight could be prevented while the case was worked up against them. Material witness detentions also permitted the police to put pressure on witnesses who would otherwise be uncooperative—family or friends of suspects or those who could potentially be charged as accomplices. Critics of anti-terrorism efforts after September 11, 2001, complain that material witness statutes were never intended to effectively lower the standard of proof required to detain a suspect, or to put pressure on uncooperative witnesses.12 The history of witness detention in New York City suggests that, as a practical matter, the power to detain witnesses has never been used any other way. 7 N.Y. PRISON ASS’N, ANNUAL REPORT 81 (1847) (hereinafter PRISON ASS’N REPORT). 8 JAMES F. RICHARDSON, THE NEW YORK POLICE: COLONIAL TIMES TO 1901, at 76 (1970). 9 Carolyn B. Ramsey, The Discretionary Power of “Public” Prosecutors in Historical Perspective, 39 AM. CRIM. L. REV. 1309, 1330 n.110 (2002). 10 See discussion infra at note 115 and accompanying text. 11 See discussion infra at notes 97-108 and accompanying text. Professor Davies has similarly observed that “[t]he modern police and aggressive policing had become realities by the end of the nineteenth century.” Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV. 547, 639 (1999). 12 See Laurie L. Levinson, Detention, Material Witnesses and the War on Terrorism, 35 LOY. L.A. L. REV. 1217, 1224 (2002) (“When America

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