OBTAINING JUDICIAL ASSISTANCE IN THE UNITED STATES: THE PROBLEM OF IMMUNITY
AbstractWith crime and civil litigation becoming increasingly transnational, parties often need the assistance of other countries in obtaining documentary evidence and testimony from reluctant witnesses. This is accomplished by letters rogatory, in which a foreign government is asked to provide assistance. Problems may arise where a government's policy of assistance conflicts with a person's constitutional rights against self-incrimination. Canadian courts still compel a witness to testify, even though his answers may incriminate him in a foreign jurisdiction. In the United States, if a witness pleads the Fifth Amendment and the court grants immunity, the witness will normally be required to testify. But if such testimony may incriminate him in a foreign jurisdiction, American courts must first determine whether the Fifth Amendment extends to protect a United States resident who fears foreign prosecutions, and assuming that it does, then decide whether in fact the witness' testimony will place him in jeopardy. In this article the author calls for Canadian legislative change approximating that in the United States.
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