Obtaining Testimony and Evidence from Overseas Witnesses

Courts do not have the authority to compel foreign nationals to travel to the United States to testify. Thus, the most desirable scenario is where the foreign witness is willing to travel to the United States voluntarily. In that case, the only potential obstacle is obtaining a visa for entry into the country. Notably, the Fifth and Sixth Amendments require that the government act in good faith and not refuse to issue a visa in order to deny a defendant access to a material witness. See United States v. Filippi, 918 F.2d 244, 245-47 (1st Cir. 1990). Nonetheless, it is advisable both to consult with immigration counsel and to make sure that the prosecutor communicates his consent to entry to the Department of State. The defense lawyer should also maintain regular contact with the witness to ensure that she remains willing to travel at trial time. An eleventh-hour change of heart will leave no time to take alternative measures to preserve the witness's testimony.

In the less-common situation where the witness is a U.S. national, courts do have the ability to issue subpoenas for U.S. testimony or documents. Under 28 U.S.C. ' 1783, if a court finds it 'necessary in the interest of justice,' it may require a citizen or resident to return, as long as personal jurisdiction over that witness otherwise exists, an inquiry that primarily considers the witness's contacts with the United States. In re Marc Rich & Co., A.G., 707 F.2d 663, 667 (2d Cir. 1983).

Rule 15

But in our hypothetical, the Argentine witnesses are unwilling to travel to the United States to testify for the defense. In such cases, they may be able to testify in a deposition taken in Argentina pursuant to Fed. R. Crim. P. 15. Rule 15 allows a party to depose an unavailable potential witness to preserve his testimony for trial, but only when exceptional circumstances exist. This typically requires a showing that: 1) the potential witness is unavailable to testify at trial; and 2) the witness's testimony is material, which is often a difficult standard to meet. See, e.g., United States v. Campbell, 300 F.3d 202, 215 (2d Cir. 2002).

The grant of a Rule 15 motion is only the first step, however, as the defense lawyer must conduct the deposition in compliance with the foreign nation's laws. It is therefore critical to research those laws thoroughly and, ideally, to consult with an attorney practicing in the foreign jurisdiction. In countries that allow the taking of voluntary depositions by stipulation of the parties, the deposition can usually proceed in a fairly straightforward manner. In those that do not, it may be necessary to request assistance from the foreign court, as discussed further below. See U.S. Department of State, Department of State Circular: Preparation of Letters Rogatory, available at http://travel.state.gov/law/info/judicial/judicial_683.html. The defense lawyer should avoid this necessity if possible by asking the witness to travel to a country that allows voluntary depositions.

When conducting a deposition abroad, counsel must ensure that the deposition complies with the Federal Rules of Evidence, is otherwise 'taken and filed in the same manner as a deposition in a civil action,' and includes cross-examination that mirrors what would be allowed at trial. Fed. R. Crim. P. 15(e)-(f). To be sure, depending on the country, this may be difficult, although perhaps in recognition of the difficulty of navigating foreign justice systems, courts have not always interpreted Rule 15 rigidly. See United States v. Salim, 855 F.2d 944, 949-52 (2d Cir. 1988).

Compulsion of Evidence: MLATs and Letters Rogatory

But what if the foreign laws allow depositions, but the witness is unwilling to sit for one? At that point, counsel must face the daunting process of seeking to compel evidence abroad. Although at first blush one might think that the many Mutual Legal Assistance Treaties (MLATs) that are in force may provide relief, those treaties apply to the government only, and most specifically exclude the creation of rights for criminal defendants. Although nothing prevents the defense lawyer from asking the prosecutor to use an MLAT on the defendant's behalf, that tack is highly unlikely to succeed.

Nevertheless, at least one commentator has thoughtfully suggested that a bad-faith refusal by the Department of Justice (DOJ) to file an MLAT request could violate the compulsory process clause of the Sixth Amendment or the due process clause of the Fifth Amendment. Robert Neale Lyman, Compulsory Process in a Globalized Era: Defendant Access to Mutual Legal Assistance Treaties, 47 Va. J. Int'l L. 261, 274-275 (2006). Although the Supreme Court held long ago that the right to compulsory process does not extend to foreign witnesses who are beyond the power of our courts, Mancusi v. Stubbs, 408 U.S. 204, 212-13 (1972), the Court specifically relied on the lack of an existing procedure to compel evidence abroad for use in our courts.

MLATs did not exist when Mancusi was decided in 1972, and its holding may be outdated. Arguably, the government now has the means to 'compel' the attendance of foreign witnesses. Thus, in a clear-cut case, the time may be ripe for a defendant to lodge an objection to a refusal by the DOJ to issue an MLAT. Such a case should involve clear, exculpatory evidence that is unobtainable by any other means.

The reality, of course, is that most defendants will be left with the cumbersome letters rogatory process. A letter rogatory is a formal request for judicial action sent by a domestic court to a foreign court through diplomatic channels, and it typically must pass through numerous agencies and ministries. The process is extremely slow ' it can a year or more for a foreign court to receive and act on a letter rogatory, and there are no means of tracking its progress through the system. Even worse, a foreign court acts on a letter rogatory only as a matter of comity, with no relief available for a flat denial.

The defense lawyer should consult with the Department of State and local counsel at the foreign site in preparing a letter rogatory to ensure that all the requirements of the particular foreign jurisdiction are met. The defense lawyer should also keep in mind that depositions authorized in connection with a letter rogatory will be taken in accordance with the foreign jurisdiction's laws, which may prevent counsel from questioning the witness directly and may not provide for a verbatim transcript. Preparation of Letters Rogatory, supra. That unfortunate circumstance could limit the evidence's admissibility at trial.

Compulsion of Evidence: Incarcerated Witnesses

Note that if the foreign witness is incarcerated, 18 U.S.C ' 3508(a) gives the Attorney General the authority to request the temporary transfer of the foreign witness. This is true whether or not the United States and the foreign country have an MLAT. Like refusals of MLAT requests, it is unclear what recourse a defendant would have if a ' 3508 request is refused.

Conclusion

Mindful of these obstacles, our hypothetical defense lawyer hopes his Argentine witnesses are amenable to his overtures lest he spend months or years bogged down in the letters rogatory process. Like all lawyers defending cases with international scope, he must act quickly to identify any potential foreign witnesses and arrange to preserve their testimony and other evidence early in the preparation for trial. It remains to be seen whether the Supreme Court will ever order the government to file an MLAT request, but as the business, financial, and law enforcement worlds increasingly transcend national borders, courts will inevitably face the issue someday soon.

Daniel R. Alonso ([email protected]), a member of this newsletter's Board of Editors, is a partner at Kaye Scholer LLP, where he concentrates on white-collar litigation and internal investigations. He began life as an Argentine national.

Imagine that your client is an executive charged with embezzling from the New York office of an Argentine business by siphoning funds into a private account. Although the primary witnesses are located in Argentina, they are willing to travel to the United States to testify for the prosecution. You, in turn, discover employees who would testify if called that your client was authorized by his company to open and use the account, but they are unwilling to leave Argentina and unwilling voluntarily to produce documents that would corroborate their testimony. Will you be able to secure evidence that could clear your client when it is located outside the reach of U.S. courts?

The defense of white-collar crime increasingly involves the need to obtain evidence from witnesses located abroad. Without careful planning, exculpatory evidence may remain out of the reach of a defendant for whom such evidence is the only thing standing between him and a prison sentence.

Best Cases

Courts do not have the authority to compel foreign nationals to travel to the United States to testify. Thus, the most desirable scenario is where the foreign witness is willing to travel to the United States voluntarily. In that case, the only potential obstacle is obtaining a visa for entry into the country. Notably, the Fifth and Sixth Amendments require that the government act in good faith and not refuse to issue a visa in order to deny a defendant access to a material witness. See United States v. Filippi , 918 F.2d 244, 245-47 (1st Cir. 1990). Nonetheless, it is advisable both to consult with immigration counsel and to make sure that the prosecutor communicates his consent to entry to the Department of State. The defense lawyer should also maintain regular contact with the witness to ensure that she remains willing to travel at trial time. An eleventh-hour change of heart will leave no time to take alternative measures to preserve the witness's testimony.

In the less-common situation where the witness is a U.S. national, courts do have the ability to issue subpoenas for U.S. testimony or documents. Under 28 U.S.C. ' 1783, if a court finds it 'necessary in the interest of justice,' it may require a citizen or resident to return, as long as personal jurisdiction over that witness otherwise exists, an inquiry that primarily considers the witness's contacts with the United States. In re Marc Rich & Co., A.G., 707 F.2d 663, 667 (2d Cir. 1983).

Rule 15

But in our hypothetical, the Argentine witnesses are unwilling to travel to the United States to testify for the defense. In such cases, they may be able to testify in a deposition taken in Argentina pursuant to Fed. R. Crim. P. 15. Rule 15 allows a party to depose an unavailable potential witness to preserve his testimony for trial, but only when exceptional circumstances exist. This typically requires a showing that: 1) the potential witness is unavailable to testify at trial; and 2) the witness's testimony is material, which is often a difficult standard to meet. See, e.g., United States v. Campbell , 300 F.3d 202, 215 (2d Cir. 2002).

The grant of a Rule 15 motion is only the first step, however, as the defense lawyer must conduct the deposition in compliance with the foreign nation's laws. It is therefore critical to research those laws thoroughly and, ideally, to consult with an attorney practicing in the foreign jurisdiction. In countries that allow the taking of voluntary depositions by stipulation of the parties, the deposition can usually proceed in a fairly straightforward manner. In those that do not, it may be necessary to request assistance from the foreign court, as discussed further below. See U.S. Department of State, Department of State Circular: Preparation of Letters Rogatory, available at http://travel.state.gov/law/info/judicial/judicial_683.html. The defense lawyer should avoid this necessity if possible by asking the witness to travel to a country that allows voluntary depositions.

When conducting a deposition abroad, counsel must ensure that the deposition complies with the Federal Rules of Evidence, is otherwise 'taken and filed in the same manner as a deposition in a civil action,' and includes cross-examination that mirrors what would be allowed at trial. Fed. R. Crim. P. 15(e)-(f). To be sure, depending on the country, this may be difficult, although perhaps in recognition of the difficulty of navigating foreign justice systems, courts have not always interpreted Rule 15 rigidly. See United States v. Salim, 855 F.2d 944, 949-52 (2d Cir. 1988).

Compulsion of Evidence: MLATs and Letters Rogatory

But what if the foreign laws allow depositions, but the witness is unwilling to sit for one? At that point, counsel must face the daunting process of seeking to compel evidence abroad. Although at first blush one might think that the many Mutual Legal Assistance Treaties (MLATs) that are in force may provide relief, those treaties apply to the government only, and most specifically exclude the creation of rights for criminal defendants. Although nothing prevents the defense lawyer from asking the prosecutor to use an MLAT on the defendant's behalf, that tack is highly unlikely to succeed.

Nevertheless, at least one commentator has thoughtfully suggested that a bad-faith refusal by the Department of Justice (DOJ) to file an MLAT request could violate the compulsory process clause of the Sixth Amendment or the due process clause of the Fifth Amendment. Robert Neale Lyman, Compulsory Process in a Globalized Era: Defendant Access to Mutual Legal Assistance Treaties, 47 Va. J. Int'l L. 261, 274-275 (2006). Although the Supreme Court held long ago that the right to compulsory process does not extend to foreign witnesses who are beyond the power of our courts, Mancusi v. Stubbs , 408 U.S. 204, 212-13 (1972), the Court specifically relied on the lack of an existing procedure to compel evidence abroad for use in our courts.

MLATs did not exist when Mancusi was decided in 1972, and its holding may be outdated. Arguably, the government now has the means to 'compel' the attendance of foreign witnesses. Thus, in a clear-cut case, the time may be ripe for a defendant to lodge an objection to a refusal by the DOJ to issue an MLAT. Such a case should involve clear, exculpatory evidence that is unobtainable by any other means.

The reality, of course, is that most defendants will be left with the cumbersome letters rogatory process. A letter rogatory is a formal request for judicial action sent by a domestic court to a foreign court through diplomatic channels, and it typically must pass through numerous agencies and ministries. The process is extremely slow ' it can a year or more for a foreign court to receive and act on a letter rogatory, and there are no means of tracking its progress through the system. Even worse, a foreign court acts on a letter rogatory only as a matter of comity, with no relief available for a flat denial.

The defense lawyer should consult with the Department of State and local counsel at the foreign site in preparing a letter rogatory to ensure that all the requirements of the particular foreign jurisdiction are met. The defense lawyer should also keep in mind that depositions authorized in connection with a letter rogatory will be taken in accordance with the foreign jurisdiction's laws, which may prevent counsel from questioning the witness directly and may not provide for a verbatim transcript. Preparation of Letters Rogatory, supra. That unfortunate circumstance could limit the evidence's admissibility at trial.

Compulsion of Evidence: Incarcerated Witnesses

Note that if the foreign witness is incarcerated, 18 U.S.C ' 3508(a) gives the Attorney General the authority to request the temporary transfer of the foreign witness. This is true whether or not the United States and the foreign country have an MLAT. Like refusals of MLAT requests, it is unclear what recourse a defendant would have if a ' 3508 request is refused.

Conclusion

Mindful of these obstacles, our hypothetical defense lawyer hopes his Argentine witnesses are amenable to his overtures lest he spend months or years bogged down in the letters rogatory process. Like all lawyers defending cases with international scope, he must act quickly to identify any potential foreign witnesses and arrange to preserve their testimony and other evidence early in the preparation for trial. It remains to be seen whether the Supreme Court will ever order the government to file an MLAT request, but as the business, financial, and law enforcement worlds increasingly transcend national borders, courts will inevitably face the issue someday soon.

Daniel R. Alonso ([email protected]), a member of this newsletter's Board of Editors, is a partner at Kaye Scholer LLP, where he concentrates on white-collar litigation and internal investigations. He began life as an Argentine national.