Defense counsel in criminal cases involving noncitizens may need to investigate and obtain evidence from outside the United States to present in defense of their clients.[207]  This can pose special difficulties.  The consulate of the defendant’s country will often be willing and able both to assist in the conduct of a foreign investigation and in obtaining foreign evidence for use in courts located in the United States. 

 

[207] See generally M. Abbell, Obtaining Evidence Abroad in Criminal Cases (2003); Chapter 12, Getting Witnesses and Evidence from Abroad, in R. McWhirter, The Criminal Lawyer’s Guide to Immigration Law 347 (2d ed. 2006). See also DOS Circulars “Service Provisions of the Foreign Sovereign Immunities Act,” “Operation of the Hague Service Convention,” “Operation of the Inter-American Convention on Service,” and “Preparation of Letters Rogatory” at the State Department website, http://travel.state.gov/law/info/judicial/judicial_702.html.  

Tenth Circuit

REMOVAL PROCEEDINGS - VIENNA CONVENTION
De La Cruz v. Maurer, 483 F.3d 1013 (10th Cir. April 3, 2007) (rejecting argument that the INS's failure to apprise him that he was entitled to communicate with Mexican consular or diplomatic officers under the Vienna Convention and immigration regulations violates Article 36(1)(b) of the Vienna Convention on Consular Relations and 8 C.F.R. 236.1(e), on grounds the argument was waived because he failed to assert the issue before the IJ, and, in any event, Torres could not show that the violation resulted in any prejudice).

Other

BIBLIOGRAPHY - INVESTIGATION - FOREIGN INVESTIGATION
Ross Garber, Gathering Defense Evidence Abroad, 33 The Champion, No. 8, p. 22 (Sept.-Oct. 2009).

CRIMINAL DEFENSE - INVESTIGATION
L. Friedman Ramirez, Federal Law Issues in Obtaining Evidence Abroad, in L. FRIEDMAN RAMIREZ, ED., CULTURAL ISSUES IN CRIMINAL DEFENSE 273 (2d ed. 2007).

BIBLIOGRAPHY
Extradition and Foreign Evidence Blog http://obtainingforeignevidence.blogspot.com/