Crimes that span political borders often require defense counsel to obtain evidence in foreign countries through discovery and depositions. Discovery is essential to any legal proceeding. In criminal law, it is the phase in which the evidence is gathered in preparation for trial. During this time, documents, physical evidence and depositions are gathered and pieced together. It is from this evidence that defense counsel produces a strategy in order to win at trial or have the charges dropped or reduced. dealing with requests for international depositions are a major part of that process.
Obtaining evidence in a foreign country is often a complicated endeavor, yet the importance of obtaining such evidence is paramount. Success in obtaining evidence will largely hinge on an attorney’s ability to understand and navigate the foreign government’s rules and laws because U.S. courts generally cannot force someone on foreign soil to turn over evidence. An attorney must abide by both the rules of the United States as well as the laws and regulations of the foreign country where the information is sought. Some countries are very accommodating to attorneys trying to obtain evidence, while others view such attempts as a threat to their sovereignty.
The method of taking a deposition in a foreign country will largely depend on that nation’s laws. Some nations allow for depositions to be taken in the office of a foreign attorney or solicitor, by telephone, or at some other venue if both parties agree. In those cases, it is important oaths at such depositions be administered properly and by an authorized person. Other nations require a deposition to be taken before a U.S. consular official empowered to administer oaths. When a U.S. consular official is required, the deposition will generally be held at an American embassy or consulate.
There are times when a foreign witness will refuse to cooperate or an individual will refuse to hand over evidence. In such cases, a defense attorney must usually rely on the foreign government to force the person to comply with the attorney’s request. The most basic way of doing this is to use letters rogatory. These are simply requests for the foreign government to compel a witness or other party to cooperate. Additionally, a foreign country may have its own laws that allow a local court to compel a witness to appear so that information may be gathered.
In any international investigation, a criminal defense attorney needs to be aware of international law and foreign relations. A defense attorney also needs to be able to negotiate with prosecutors and foreign officials to obtain the evidence necessary to zealously defend his client in court. Our lawyers have successfully represented clients in international criminal investigations in several different foreign countries. If you are involved in an international investigation requiring discovery and depositions abroad, our firm may be able to help.
The information provided above is a very general summary of the law governing international discovery and depositions at the time this text was prepared. Because this analysis is subject to change depending upon recent cases and legal developments, you should not rely on this summary as legal advice. As with any important legal question, you should always consult a lawyer licensed to practice in your jurisdiction. Our lawyers are licensed to practice in all state and federal courts in Georgia and have been admitted to practice in many other federal district courts.