Dominique Strauss-Kahn and Judicial Assistance
Posted on May 17, 2011
The international law coverage of the charges against Dominique Strauss-Kahn has focused, rightly, on the public international law question of whether Strauss-Kahn can assert a defense of immunity because he is the managing director of the IMF. Duncan Hollis at Opinio Juris has a post up about this.
What about the judicial assistance aspects of the case? Criminal judicial assistance is beyond the self-imposed limitations of the Letters Blogatory Scope of Coverage, but there is at least the possibility of civil litigation that could involve transatlantic discovery. Suppose the alleged victim sues in the U.S. District Court for assault and battery, false imprisonment, or other torts. Under Rule 415(a) of the Federal Rules of Evidence:
In a civil case in which a claim for damages or other relief is predicated on a party’s alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party’s commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these Rules.
Press reports suggest there is another alleged victim of a sexual assault in France who is considering bringing a complaint of her own. Suppose the alleged victim in New York wanted to offer the testimony of the alleged victim in France, and the Frenchwoman was unwilling to travel to the United States for trial? Of course a statement from the French witness, or even an affidavit, would be inadmissible hearsay. So it would be necessary to take testimony in France in a way that would be admissible in the US civil proceeding. There are two paths under the Hague Evidence Convention (I leave to the side Article 17 of the Convention, which permits depositions to be taken by commissioners other than diplomatic or consular personnel):
First, if the French witness is willing to appear without compulsion, the plaintiff could seek to take her deposition under Article 16 of the Convention, which provides:
A diplomatic officer or consular agent of a Contracting State may, in the territory of another Contracting state and within the area where he exercises his functions, also take the evidence, without compulsion, of nationals of the State in which he exercises his functions or of a third State, in aid of proceedings commenced in the courts of a State which he represents, if—
(a) a competent authority designated by the State in which he exercises his functions has given its permission either generally or in the particular case, and
(b) he complies with the conditions which the competent authority has specified in the permission.
In practice, and according to the French declarations regarding Article 16, this means that it is necessary to obtain the permission of the French Ministry of Justice to take the deposition, which, in addition to any particular conditions imposed, will be conditioned on the following: (1) the deposition must take place within the precincts of the US Embassy; (2) the French Service Civil de L’Entraide Judiciaire Internationale must be given sufficient advance notice in case it wants to send a representative; (3) the public must have access to the room where the testimony is taken (!); and (4) that an appropriate summons be served on the witness informing her of her rights. According to the State Department, a commission from the US court is required, even though the Code of Federal Regulations authorizes US consular and diplomatic personnel to take depositions on notice as well as depositions on commission. 22 C.F.R. § 92.55. No doubt the plaintiff would want to follow the State Department’s judicial assistance guidance on this point.
Suppose the witness is unwilling to appear voluntarily? Then it will be necessary to ask the US court to send a Letter of Request to the French Central Authority—again, the Ministry of Justice. The Letter of Request must specify “the evidence to be obtained”, and it may include a list of “the questions to be put to the persons to be examined or a statement of the subject-matter about which they are to be examined.” Assuming the Letter meets the requirements of the Convention, the Central Authority will transmit the Letter to the competent French authority, which will execute the Letter, “apply[ing] its own law as to the methods and procedures to be followed” (but the US court may request a special method or procedure be followed, as long as the special method is not inconsistent with French law). The French court must apply the same measures to compel the witness’s attendance as it would in a domestic case. The French court would question the witness. The US lawyers might or might not be permitted to put follow-up questions to the witness to a greater or lesser degree: according to this 2003 ABA report, the anecdotal evidence on US lawyers’ ability to participate fully in the questioning, as in a US-style deposition, is mixed.
If the plaintiff has to use the Letter of Request procedure rather than a consular deposition, will the testimony be admissible over a hearsay objection? Probably yes, at least as long as Strauss-Kahn has an opportunity at least to submit questions in writing for the witness to answer and to submit written follow-up questions. Assuming the French witness is unwilling to come to the United States for trial, she is unavailable for hearsay purposes. Under Rule 804(b):
The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect. examination.
The key question is whether Strauss-Kahn’s lawyer would have an adequate opportunity for cross-examination. In United States v. Salim, 855 F.2d 944 (2d Cir. 1988), the court held that a French deposition was admissible under Rule 804 in such circumstances, and Salim, which was a criminal case, applies with even greater force in our hypothetical civil lawsuit, because in a civil case there are no constitutional barriers to the admission of hearsay, whereas in a criminal case the defendant has the constitutional right to confront his accusers.
I’ll be keeping my eyes open for developments in this case!