Crimes which span political borders often require defense counsel to obtain evidence in foreign countries through discovery and depositions. Discovery is essential to any legal proceeding. In criminal law, it is the phase in which the evidence is gathered in preparation for trial. During this time, documents, physical evidence and depositions are gathered and pieced together. It is from this evidence that defense counsel produces a strategy in order to win at trial or have the charges dropped or reduced.

Obtaining evidence in a foreign country is often a complicated endeavor, yet the importance of obtaining such evidence is paramount. Success in obtaining evidence will largely hinge on an attorney's ability to understand and navigate the foreign government's rules and laws because U.S. courts generally cannot force someone on foreign soil to turn over evidence. An attorney must abide by both the rules of the United States as well as the laws and regulations of the foreign government where the information is sought. Some countries are very open to an attorney obtaining evidence while others view such attempts as a threat to sovereignty.

The method of taking a deposition in a foreign country will largely depend on that nation's laws. Some nations allow for depositions to be taken in the office of a foreign attorney or solicitor, by telephone or at some other venue if both parties agree. However, it is important to utilize an individual who can properly administer oaths at such depositions. Other nations require a deposition to be taken before a U.S. consular official who is generally empowered to administer oaths. When a U.S. consular official is required, the deposition will generally be held at an American embassy or consulate.

There are times when a foreign witness will refuse to cooperate or an individual will refuse to hand over evidence. In such cases, a defense attorney must usually rely on the foreign government to force the witness or person to comply with the attorney's request. The most basic way of doing this is to employ something known as letters rogatory. These letters are simply requests for the foreign government to compel a witness or other party to cooperate. In addition, a foreign country may have its own laws which allow for a local court to compel a witness to appear so that information may be gathered.

In any international investigation, a criminal defense attorney needs to be aware of international law and foreign relations. A defense attorney also needs to be able to negotiate with prosecutors and foreign officials to obtain the evidence necessary to zealously defend his client in court. Our lawyers have successfully represented clients in international criminal investigations in several different foreign countries. If you are involved in an international investigation requiring discovery and depositions abroad, our firm may be able to help.

The information provided above is a very general summary of the law regarding this particular legal issue at the time this text was prepared. Because this analysis is subject to change depending upon recent cases and developments, you should not rely on this summary as legal advice. As with any important legal question, you should always consult with a lawyer licensed to practice in your jurisdiction. Our lawyers are licensed to practice in all Georgia state and federal courts.