Washington International Law Journal


David Whedbee


Transnational organized crime has an adverse impact on the United States and the People's Republic of China. In the last thirty years, the mutual legal assistance agreement has emerged as an effective mechanism to streamline international judicial assistance in combating borderless crime. The accretion of these agreements has created a growing web of bilateral obligations that links sovereign jurisdictions. The U.S.-P.R.C. mutual legal assistance agreement (the "U.S.-P.R.C. MLAA") furthers U.S. interests by facilitating U.S. Attomeys' access to physical evidence and witnesses in the People's Republic of China. Significantly, the political offense exception in the U.S.-P.R.C. agreement permits U.S. authorities to avoid complicity in Chinese prosecutions of political dissidents and religious minorities. Missing from these arrangements, however, is consideration of U.S. constitutional safeguards that should accompany the expanded power of U.S. law enforcement abroad. While prosecutors can exchange evidence directly under the U.S.-P.R.C. MLAA, defendants must resort to discretionary access to evidence abroad under the antiquated letters rogatory system. This imbalance may infringe on the defendant's right to compulsory process. Given the very broad "state secrets" exception under Chinese law, defendants may be unable to obtain exculpatory evidence from the People's Republic of China. The defendant's right to confrontation may also be compromised in the Chinese context. The widely acknowledged Chinese police practice of coercion of the accused and incarcerated may stifle truthfulness, undermining the genuine opportunity for defense counsel to reliably cross-examine a Chinese witness in police custody. By allowing defendants in U.S. criminal proceedings more reliable access to evidence in the People's Republic of China under the U.S.-P.R.C. MLAA framework, the protection of U.S. constitutional rights to compulsory process would be enhanced.

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