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Court deals setback to prosecutors in cross-border cases

Jaclyn Jaeger | September 12, 2017

A recent federal appeals court ruling creates new hurdles for U.S. prosecutors conducting cross-border investigations, including those regarding of the Foreign Corrupt Practices Act. At the same time, it affords individuals involved in cross-border cases another avenue to explore in challenging potential prosecutions.

In the case, United States v. Allen, the U.S. Court of Appeals for the 2nd Circuit upheld the Fifth Amendment’s prohibition on the use of compelled testimony in U.S. criminal proceedings, even when a foreign government lawfully compels the testimony. The decision reinforces what several other circuit courts have already affirmed, which is that a statement must be voluntary, rather than compelled, if it is to be admissible in a U.S. criminal trial.

Although the Allen decision is not earth shattering—the Department of Justice has been aware of this legal land mine for years and usually takes good-faith measures to ensure the use of... To get the full story, subscribe now.