GLOBAL LITIGATOR: The Role of Mutual Legal Assistance Treaties in Obtaining Foreign Evidence

Vol. 40 No. 2

Virginia M. Kendall is a U.S. district judge in the Northern District of Illinois and an associate editor of Litigation. T. Markus Funk is a partner with Perkins Coie and an associate editor of Litigation.

We live in a world that appears smaller each day due to the ease of instantaneous electronic communication. Not surprisingly, the criminal’s ability to cross international borders to commit crimes, store evidence, and employ codefendants in foreign countries is correspondingly on the rise—in fact, the media report daily on new cases involving such cross-border criminal offenses. Practitioners know that, in this ever-contracting world of the unlawful, prosecutors are pressed into employing increasingly sophisticated strategies to gather central evidence from foreign countries. Defense attorneys, for their part, dig deep in their efforts to defend their corporate and individual clients. As today’s criminal cases are routinely characterized by such transnational dimensions, once-mysterious Mutual Legal Assistance Treaties (MLATs), the key government-to-government method of sharing and obtaining evidence, have truly taken center stage. But how MLATs actually function, what differentiates MLATs from letters rogatory, and the challenges posed by the inherently one-sided nature of the MLAT are just some of the questions and issues that practitioners—particularly those new to multinational criminal cases—can find puzzling. We are here to help.

Let us at the outset address a key area of confusion—namely, the precise scope and purpose of the MLAT. MLATs are limited to law enforcement officials involved in criminal investigations and proceedings (or, in some cases, in civil matters where the civil case is related to the criminal matter). Access to evidence though an MLAT is, therefore, restricted to prosecutors, governmental agencies that investigate criminal conduct, and governmental agencies responsible for matters ancillary to criminal conduct, including civil forfeiture.

It is interesting that the first three MLATs signed by the United States—those with Switzerland, Turkey, and the Netherlands—did, in fact, include provisions granting access to defense counsel. But that more all-inclusive approach is, indeed, history; today these self-executing treaties, for better or (as many in the defense bar believe) worse, do not create individual rights or provide mechanisms for private parties, such as criminal defendants, to request the production of evidence. Criminal defendants, for their part, are thus relegated to using letters rogatory to secure evidence located abroad—a far less efficient and reliable process.

 

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