The world of MLATs – we talk to an expert
Mutual Legal Assistance Treaties are mechanisms by which law enforcers seek co-operation and help from their foreign counterparts in support of criminal investigations or civil proceedings. They are an essential means of acquiring evidence from all over the offshore world, but anyone who thinks that the MLAT process helps prosecutors and defendants alike in an even-handed way can think again. In this article Chris Hamblin of Offshore Red talks to Markus Funk, the head of the white-collar investigations practice at the US law firm of Perkins Coie and a veteran of many offshore investigations.
Governments intentionally restrict access to assistance to evidence through Mutual Legal Assistance Treaties to prosecutors, government agencies that investigate criminal conduct and government agencies that are responsible for matters ancillary to criminal conduct, including civil forfeiture. They make no exception for people who are trying to defend themselves against charges and/or civil asset recovery action, who can use them to obtain evidence that might help their own causes.
Letters rogatory, by contrast, have a consider- ably broader reach than MLATs: US federal and state courts can issue them as part of criminal, civil, and administrative proceedings, they can be requested by anyone, and can be sent to US federal and state courts by any foreign or international tribunal or ‘interested person.’ One major drawback, however, is that letters rogatory are only available once formal proceedings have begun; nobody can issue them during the investigative, pre-charging stage of criminal proceedings or at any time before somebody has issued a writ.
To take a closer look at these two methods of gathering evidence internationally, and to investigate the interplay between them, we spoke to Markus Funk. The rest of this article is in the form of a question-and-answer session.
Q. For criminal proceedings, there are two primary means of obtaining evidence: an MLAT and a letter rogatory. What are the latest developments to do with these around the world?
A: Practitioners know that for criminal proceedings there are two primary means of obtaining evidence (which is to say physical evidence, documents/data, and testimony). These are Mutual Legal Assistance Treaties (MLATs) and letters rogatory. For civil proceedings, in contrast, there is only a letter rogatory.
Evidence obtained from abroad through these tools may be presented as part of court proceedings. That said, it is important not to lose sight of the in-the-trenches reality that diplomacy, executive agreements and information exchange through informal communications can play an important role in transnational criminal investigations and civil litigation.
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