Criminal defendants have never been on equal footing with the government when it comes to obtaining evidence. This discrepancy is even greater when the evidence lies overseas, as is often the case with the increasing number of FCPA, money laundering, export control, and economic sanctions cases pursued by the Department of Justice in recent years. Governments can use Mutual Legal Assistance Treaties (MLATs) and other methods to directly seek the assistance of foreign law enforcement agencies to produce persuasive documents and obtain testimony from foreign witnesses; Defendants are relegated to a lengthy and often ineffective letter pleadings process. The government has resisted defendants' efforts to force the use of the MLAT to exculpate the defense, and courts have avoided forcing the government's hand.
However, there are exceptions, which have recently attracted attention. America vs. Cobain, Civ. 2:19-cr-00120 (KM) (DNJ April 27, 2022) – Highlights a potential strategy by which defendant may employ his MLAT for his own purposes in the future. Under pressure from a district judge with a unique history on this very issue, the government backed off and agreed to pursue the MLAT's request for potentially exculpatory defense testimony. If other courts follow suit, it could help bridge the investigative gap between prosecution and defense in cross-border criminal cases.
