Tooby's California Post-Conviction Relief for Immigrants

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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.[215]  “It is not at all clear that state courts have a comparable power to compel the attendance of witnesses abroad.”[216]  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.[217]  Defense counsel may be able to use a “treaty of mutual assistance” or letter rogatory to compel foreign testimony.

[215] 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).

[216] 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).

[217] 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).