Sunday, October 18, 2009

The Problem With Extraterritorial Prosecutions -Getting the Witnesses

Carrie Johnson, Washington Post, Afghan Men Tricked Into U.S. Trip, Detained -Possible Witnesses Have Been Forced To Stay Since 2008 has a must read article on a key problem that arises when one prosecutes extraterritorial conduct - how do you get the witnesses into the United States. The saga of witnesses who were lured to the United States on false pretenses for a bribery trial sends a sad message of the image the United States projects to other countries.

But I have to wonder about the other side of this story - that is, how does defense counsel get its witnesses from abroad?  Although the government can come up with elaborate schemes to lure witnesses into the U.S., defense counsel does not have this same ability.  Defense counsel may be left to using subpoenas and be unable to secure the witnesses who fail to respond as they are beyond the jurisdiction of the United States. Luring and then holding witnesses is improper, but it is more problematic if only one side has the ability to engage in this process.


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