Foreign Evidence And The Diplomatic Channel

Gathering evidence overseas is so difficult that U.S. law extends the FCPA’s five-year statute of limitations by up to three more years. All that’s required is for DOJ prosecutors to make a formal request to the court trying the case.

There’s no automatic extension for defendants, although courts usually give them plenty of time when they might need foreign evidence for their defense.

Why does collecting evidence overseas take so long?

A U.S. court can’t order production of evidence that’s within the sovereignty of another country. Unless it can be gathered informally — through the good graces of a local prosecutor, for example — foreign evidence has to be obtained through a letter rogatory.

‘Letters rogatory,’ according to the State Department, ‘are the customary method of obtaining judicial assistance from abroad in the absence of a treaty or executive agreement. Letters rogatory are requests from courts in one country to the judiciary of a foreign country requesting the performance of an act which, if done without the sanction of the foreign court, could constitute a violation of that country’s sovereignty.’

In the world of striped pants, nothing happens fast. The State Department warns that letters rogatory take a year or longer to work — if they work at all.

Part of the hold up is the need to use the ‘diplomatic channel’  — a route by which documents are sent to foreign courts. A letter rogatory to be inserted into the diplomatic channel starts at the U.S. trial court, where it has to be signed by the judge. Then, depending on the other country’s requirements, the letter rogatory usually needs to be authenticated, either by an apostille, exemplification certificate, or a chain certificate of authentication.

There’s more. The letter rogatory and exhibits have to be translated into the official language of the foreign country. The translator, according to the State Department, should execute a separate notarized affidavit as to the validity of the translation.

Once signed by the U.S. judge, translated and authenticated, the letter rogatory goes from the State Department to the U.S. embassy in the target country, then on to the local ministry of foreign affairs, and finally — if the fates allow — to the local court.

If the local court does anything to compel the gathering of evidence within its jurisdiction, the fruits are delivered back to the U.S. court, traveling in reverse via the diplomatic channel.