(A)  Subpoenas for Foreign Witnesses.  Defense counsel in a federal criminal case can subpoena U.S. citizens and Lawful Permanent Residents who are outside the United States.[208]  “It is not at all clear that state courts have a comparable power to compel the attendance of witnesses abroad.”[209]  A foreign witness who is not a U.S. citizen or Lawful Permanent Resident, however, cannot be compelled to testify since they owe no allegiance to the United States.[210]  Defense counsel may be able to use a “treaty of mutual assistance” or letter rogatory to compel foreign testimony.

 

[208] 28 U.S.C. § 1783.  See Blackmer v. United States, 284 U.S. 421, 436 (1932).  This process is described in R. McWhirter, The Criminal Lawyer’s Guide to Immigration Law § § 12.3-12.8, 348-349 (2d ed. 2006).  See Department of State circular “Service of Process Abroad” at http://travel.state.gov/law/info/judicial/judicial_702.html.  See also F.R.Civ.P. 4(j)(1) (how to effect service of process in another country under 28 U.S.C. § 1608).

[209] American Bar Ass’n, A Judge’s Guide to Immigration Law in Criminal Proceedings 3-21 (P. Goldberg & C. Wolchok, eds., 2004), citing Mancusi v. Stubbs, 408 U.S. 204, 212 (1972); State v. Zaehringer, 325 N.W.2d 754, 759 (Iowa 1982).

[210] See United States v. Theresius Filippi, 918 F.2d 244, 247 (1st Cir. 1990) (U.S. court cannot subpoena witness who is not a U.S. citizen and who is located abroad); Gillars v. United States, 182 F.2d 962 (D.C. Cir. 1950). 

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/