The investigation of transnational criminal conduct often involves gathering evidence located in foreign countries. However, national sovereignty, international treaties, and international law preclude U.S. law enforcement officials from simply flying to a foreign country to conduct searches, question suspects, obtain documents, and proceed with arresting individuals for trial in the United States. In the absence of a foreign country’s agreement to cooperate in a criminal investigation, U.S. prosecutors have limited options. For this reason, transnational cooperation and collaboration in criminal matters is an integral component of contemporary criminal justice systems.
There are two primary means of obtaining evidence for use in a transnational criminal proceeding: a Mutual Legal Assistance Treaty (MLAT) and a letter rogatory. Evidence obtained from abroad through these tools may be presented as part of court proceedings, requiring U.S. judges to be familiar with the legal issues implicated by transnational requests for assistance. In addition, judges should be aware that diplomacy, executive agreements, and information exchange through informal communications also play an important role in transnational criminal investigations.
Requests for transnational assistance requiring judicial oversight most commonly involve activities necessary for proceeding with a criminal investigation or prosecution or a transnational civil proceeding, such as serving subpoenas, locating evidence and individuals, and taking testimony. The court’s role in reviewing these requests will vary depending upon the applicable treaties and foreign law.
Originally Published in the Federal Judicial Center International Litigation Guide - 2014.
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