Obtaining Evidence in the United States for Use by The Defense in a Foreign Criminal Proceeding

This article explains how a criminal defendant in a foreign country may obtain documents or testimony from a person, business, or institution in the United States for use as evidence in a foreign proceeding. Title 28 U.S.C. § 1782 provides a simple and effective method for criminal defendants and those under investigation in foreign countries to request a U.S. federal court to assist the defendant in obtaining evidence from persons subject to the court’s jurisdiction. Under the statute, a U.S. federal court may issue a subpoena requiring a person in the United States to appear and give testimony at a deposition, or may issue a subpoena duces tecum requiring a person or entity within the United States to produce documents. Although a court can deny such a request for numerous reasons — for example, because the evidence sought is protected on the grounds of U.S. national security or is protected by a privilege, the statute can be a valuable aid in any criminal case. This article explains the mechanics of § 1782, points out how American lawyers can assist foreign counsel in using it, and identifies some pitfalls to avoid.