Hurtado v. United States, 410 U.S. 578 (1973)

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Syllabus

1. A material witness who is incarcerated because unable to give bail is entitled under 28 U.S.C. § 1821 to the same $20 per diem compensation as is allowed a nonincarcerated witness during the trial or other proceeding at which he is in "attendance," i.e., has been summoned and is available to testify in a court in session, regardless of whether he is physically present in the courtroom. Pp. 582-587.

2. The $1 statutory per diem plus subsistence in kind for incarcerated witnesses before trial does not violate the Just Compensation Clause, as detention of a material witness is not a "taking" under the Fifth Amendment; and the distinction between compensation for pretrial detention and for trial attendance is not so unreasonable as to violate the Due Process Clause of the Fifth Amendment, since Congress could determine that, in view of the length of pretrial confinement and the costs necessarily borne by the Government, only minimal compensation for pretrial detention is justified, particularly since the witness has a public duty to testify. Pp. 588-591.

452 F.2d 951, vacated and remanded to District Court.

STEWART, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, post, p. 591. DOUGLAS, J., filed a dissenting opinion, post, p. 600.