24 August 2004

More on the Subpoena of Someone in Cairo

A reader was kind enough to point me in the direction of Mutual Legal Assistance in Criminal Matters Treaties of which there is one between the U.S. and Egypt.

Reading through the information, I find it a little disturbing that these only assist prosecutors and think that this probably raises all sorts of issues (at least in intra-U.S. law). However, I've got to get to court so I'll let ya'll sort them out.

3 comments:

Ken Lammers said...

Remembering that this line of discussion is about the subpoena ability, the problem which first springs to mind is that this sets the basic rights as laid out in constitution on their ear. There is no constitutional guarantee that the government can call witnesses; on the other hand the 6th Amendment demands for defendants the right "to have compulsory process for obtaining witnesses in his favor." If the government has acted to put in place a process by which it has the right to compel witnesses, but excludes the Defense from that ability, that is a choice by the government to act in a manner excluding the Defense from a fundamental right after awarding the privilige to itself.

I've not researched the matter and suspect that somewhere out there a court or two has given the government cover for this. Still, it is something that we should be concerned about (if not constitutionally, at least as a matter of policy).

Tom Lincoln said...

Ken: We probably run into this in Puerto Rico more often than you would, given that we get so many persons trafficking drugs from Colombia indicted here. Sometimes we need defense witnesses who are willing to testify but cannot get into the U.S., and we have the Court direct the government to assure that the person can get in. This means we have to disclose the witness' name, but it is much better than doing without.

Ken Lammers said...

The problem is that our system is not supposed to be set up in a manner which favors the prosecution.

I'm not so certain that all, or many, of the people effected by this are the ones who are powerful enough to use multi-national connections and/or hide in another country. I see, over and over again, laws which were meant to snag the big fish landing a lot more little fish. Tom Lincoln would probably be in a better position to address who this sort of thing effects most often.