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The Globalization of Investigations

By Benjamin Goldberger and Michael Kendall

Over the past several years, the Department of Justice ('DOJ') has expanded its tools and efforts to gather evidence from abroad and reciprocate by helping foreign prosecutors gather evidence in the United States. For a client whose primary presence is in this country, cross-border cooperation among law enforcement organizations raises distinct and difficult issues. An effective defense requires knowledge of treaties and criminal law in two or more jurisdictions, and collaboration among defense counsel in different countries.

Although some law enforcement agencies cooperate with each other on an informal basis, more significant are agreements between or among countries. Some agreements take the form of memoranda of understanding, reflecting a bilateral agreement between the U.S. executive branch and a foreign sovereign. Others are treaties that are the 'law of the land' on equal footing with Acts of Congress. U.S. Const., art. VI. In addition to extradition treaties, law enforcement agencies cooperate pursuant to tax treaties, customs treaties and, most importantly, mutual legal assistance treaties ('MLATs').

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