Funk on MLATs and Letters Rogatory

T. Markus Funk, PhD (University of Colorado School of Law) has posted Mutual Legal Assistance Treaties and Letters Rogatory (Federal Judicial Center) (U.S. Federal Judicial Center, International Litigation Guide, 2023) on SSRN. Here is the abstract:

 

The investigation of transnational criminal conduct, like the discovery process for transnational civil proceedings, often involve 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 or civil litigation, U.S. prosecutors or civil litigation counsel have limited options. For this reason, transnational cooperation and collaboration is an integral component of contemporary justice systems.

For criminal proceedings, there are two primary means of obtaining evidence: a Mutual Legal Assistance Treaty (MLAT) and a letter rogatory. For civil proceedings, there is only 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 and civil litigation.

Initially prepared as a "cheat sheet" for US federal judges, this guide provides an overview of the statutory schemes and procedural matters that distinguish MLATs and letters rogatory, and it discusses legal issues that arise when the prosecution, the defense, or a civil litigant seeks to obtain evidence from abroad as part of a criminal or civil proceeding.