Challenges to Obtaining Foreign Evidence in Cross-Border Criminal Cases

The Champion

11.15.2019

In this article, Lauren Briggerman, Addy Schmitt, and Linda Friedman Ramirez of Linda Friedman Ramirez P.A. discuss the expansive view of Congress regarding the United States' interests in prosecuting crimes that occur abroad, reflected in the passage of a number of criminal statues with extraterritorial reach. The authors provide an overview of constitutional issues defendants face when seeking foreign evidence in cross-border cases, discuss methods available to defendants to obtain foreign evidence, as well as hurdles they may encounter when seeking such evidence—particularly in light of many countries' new data privacy laws—and summarize the relevant U.S. laws and rules that govern admissibility of foreign evidence.

"As criminal cases become increas­ingly cross-border in nature, the need for defendants to obtain evidence locat­ed abroad has become more common. Defense counsel have constitutional and ethical obligations to help clients obtain evidence no matter where it resides," the authors wrote. "However, defendants have limited meth­ods by which to seek evidence abroad, and foreign laws can present challenges to a defendant’s ability to reach evidence abroad. It is therefore critical for defense counsel to consult with experienced and knowledgeable local counsel so that clients can avail themselves of all possi­ble methods to obtain foreign evidence without running afoul of foreign laws."