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| Kaylana Mueller-Hsia |
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| Rebecca Wexler |
The government has several routes to obtaining evidence held overseas, including through mutual legal assistance treaties, or MLATs, which enable law enforcement authorities and prosecutors to obtain evidence, information and testimony abroad. But criminal defendants — whose liberties are at stake — are consigned to a single, inefficient and unreliable path: letters rogatory.
However, recent developments in the long-running case of U.S. v. Coburn[1] may very well challenge this status quo and establish a new precedent for criminal cases.
U.S. v. Coburn is slated to go to trial in the fall, and the parties continue to spar over evidentiary issues. Among other things, the U.S. District Court for the District of New Jersey has ordered that prosecutors must use their investigative powers to obtain evidence from abroad on behalf of the criminal defendants they are attempting to prosecute — two former executives of Cognizant Technology Solutions Corp.
Other courts should follow suit and pioneer a much-needed path for defendants to access exculpatory evidence, particularly with the advent of bilateral Clarifying Lawful Overseas Use of Data, or CLOUD, Act agreements.[2] This remedy is essential to defendants' due process rights and will have the practical effect of facilitating faster trials.
In the U.S., accessing foreign-stored evidence is time- and resource-intensive, and substantially more so for criminal defendants. The defendants in U.S. v. Coburn are charged with allegedly authorizing Larsen & Toubro Ltd., a leading contractor in India, to bribe an unidentified official in India to obtain a planning permit for a new office that L&T was building.
One of the primary hurdles in the litigation has been defendants' inability to compel testimony from several witnesses in India who may help exonerate them. Defendants have sought for years to obtain this testimony.
While government prosecutors have access to MLATs to facilitate assistance from foreign governments in obtaining evidence, criminal defendants cannot use the treaties unless the prosecutor chooses to issue an MLAT on their behalf.
Courts have historically interpreted a treaty provision that prevents "private person[s]" from issuing MLATs to mean criminal defendants are barred from using the treaties by right.[3]
In the absence of MLAT powers, criminal defendants rely on letters rogatory — requests from a U.S. court to a foreign court for judicial assistance. Letters rogatory are much slower and less reliable[4] than MLAT requests because they depend on the goodwill of the foreign court, and must be processed externally through the U.S. Department of State.
Meanwhile, defendants are left without control over or insight into the process while they wait. In the case of U.S. v. Coburn, the Indian government denied the defendants' letters rogatory, advising the government to submit a MLAT request instead.
Very rarely has the U.S. Department of Justice voluntarily issued MLAT requests on behalf of defendants to speed up evidentiary requests. In U.S. v. Coburn, however, the Office of International Affairs counseled the DOJ against doing so, citing its interpretation of the MLAT's provision on private persons. This left the defendants without any option to obtain their witness testimony.
In December 2023, however, U.S. District Judge Michael Farbiarz compelled the DOJ to issue an evidentiary request via an MLAT on behalf of the defendants. In January, the government did so, though as of April 24, prosecutors noted they were still awaiting word from India's Ministry of Home Affairs as to when the parties could travel to India to conduct depositions.
Judge Farbiarz's order is an opportunity to rebalance the system of cross-border evidentiary requests, making it more fair and efficient.
For years, criminal defendants have raised constitutional concerns that their lack of access to overseas evidence violates their Fifth and 14th Amendment rights to raise a defense.[5] U.S. law enforcement has no constitutional, statutory or ethical duty to actively investigate exculpatory evidence; criminal defense counsel are the only ones with that obligation.
As a result, cutting criminal defendants out of the MLAT system leaves them without meaningful access to evidence held abroad. That's so even if they would have a well-established right to obtain the same information domestically.
This structural disadvantage is especially concerning for all cases that have an international component, which can include terrorism, immigration and even low-level drug trafficking.
For instance, in the 2021 case of U.S. v. Al Safoo in the U.S. District Court for the Northern District of Illinois, a man charged with providing material support to the Islamic State group learned that the prosecution's star witness had changed his story after being tortured in Iraq to coerce his testimony.
However, because the evidence was held abroad, the defendant was unable to use it to impeach this key witness for making inconsistent statements.[6]
Obtaining exculpatory evidence should not be wholly dependent upon the prosecution advocating for its disclosure — an unrealistic expectation in an adversarial legal system.
In addition, facilitating defendant access would make trials faster. Waiting for foreign governments to respond to defendants' letters rogatory delays all parties. Providing defendants with meaningful access to processes that the prosecution already enjoys would serve everyone's interest in fair and speedy resolutions to cases.
It would help avoid timelines like in U.S. v. Coburn, which has already experienced numerous evidentiary delays and has been pending for more than five years.
That said, while quicker than letters rogatory, MLAT requests still take an average of 10 months to fulfill.[7] In today's era of digitally stored information, and in a landscape of increasing data localization laws — which cabin the storage of data about a country's citizens to within its physical borders[8] — it is all the more difficult to access evidence.
This is an opportune moment to rethink defendants' access to evidence because the U.S. is on the precipice of new channels for cross-border data sharing after the passage of the CLOUD Act in 2018. Future bilateral CLOUD agreements will permit U.S. law enforcement to expedite access to overseas data.[9] The law requires that foreign governments and technology companies respond to requests by governmental entities.[10]
Despite its promises, however, the CLOUD Act risks reinforcing old inequities. The law's requirement that foreign governments and technology companies respond to requests by "governmental entit[ies]" is language that courts have also interpreted to preclude defense counsel. And new CLOUD agreements might replicate the old asymmetries in MLATs.
Policymakers drafting forthcoming CLOUD agreements should use Judge Farbiarz's order as a signal of court support for including an express channel for defendants to request evidence.
To be sure, courts may have legitimate concerns that permitting requests on behalf of criminal defendants could open the door to all sorts of requests by defendants or other private persons.
However, the MLAT system already allows the more than 18,000 federal, state, local, territorial and tribal police departments across the country to access foreign evidence.[11] Allowing the criminally accused to use the same channels to access relevant evidence will not change the quantum significantly, and it is only fair.
The new ruling is not a panacea, but it is a chance to realign the stakes between the prosecution and defense.
When courts are willing to advocate for defendants' access to important evidence, they are backed by the authority to sanction or otherwise penalize the prosecution if they choose not to comply. This is a significant step beyond the status quo of leaving MLAT requests up to the government.
In the future, other courts should take the opportunity to order MLAT requests for criminal defendants, affirming Judge Farbiarz's ruling that defendants deserve the right to access overseas evidence and mount their strongest defense.
Kaylana Mueller-Hsia is a student at the University of California, Berkeley School of Law.
Rebecca Wexler is an assistant professor at the UC Berkeley School of Law. She also serves as faculty co-director of the Berkeley Center for Law & Technology.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] https://www.justice.gov/criminal/criminal-fraud/fcpa/cases/gordon-coburn.
[2] https://texaslawreview.org/life-liberty-and-data-privacy-the-global-cloud-the-criminally-accused-and-executive-versus-judicial-compulsory-process-powers/.
[3] https://www.state.gov/05-1003.
[4] https://texaslawreview.org/life-liberty-and-data-privacy-the-global-cloud-the-criminally-accused-and-executive-versus-judicial-compulsory-process-powers/.
[5] https://www.millerchevalier.com/sites/default/files/resources/Reprints/
Champion_Nov2019_Obtaining_Foreign_Evidence.pdf.
[6] https://texaslawreview.org/life-liberty-and-data-privacy-the-global-cloud-the-criminally-accused-and-executive-versus-judicial-compulsory-process-powers/.
[7] https://obamawhitehouse.archives.gov/sites/default/files/docs/2013-12-12_rg_final_report.pdf.
[8] https://searchworks.stanford.edu/view/dw961wy6280.
[9] https://www.justice.gov/criminal/cloud-act-resources#:~:text=The%20CLOUD%20Act%20is%20designed,fight%
20serious%20crime%20and%20terrorism.
[10] https://www.justice.gov/d9/pages/attachments/2019/04/09/cloud_act.pdf.
[11] https://www.justice.gov/d9/policing_101_content.pdf.