A Mandatory Right to Counsel for the Material Witness

This Note argues that a uniform statute establishing a mandatory right to counsel should be adopted, at both the state and federal levels, to afford to the material witness protection that the Constitution fails to provide. Part I describes the general scope of the problem and concludes that neither the federal government, the individual states, nor the United States Constitution provides the material witness with a mandatory right to counsel. Part II argues that the material witness should have a statutorily mandated right to counsel. A mandatory right to counsel should be extended to the material witness both for the protection of the witness’ rights and for the encouragement of witness participation in the criminal justice system. Part III briefly considers a potential counter-argument to the claim that the material witness should be given a statutory right to counsel, and concludes that the provision of counsel for the material witness need not threaten the constitutional rights of the defendant to confront his or her accuser. Finally, Part IV presents a model statute establishing such a mandatory right to counsel for the material witness and evaluates recent federal legislation that was considered by Congress in 1984.