- Affidavits.
If the fugitive has not been convicted,
it
will be necessary to provide affidavits establishing the commission of the
crime
and the identity of the fugitive as the author of the crime. (If the
fugitive
has been convicted, see this Manual at
609.
To satisfy this requirement, the prosecutor should prepare affidavits for
signature by investigators, witnesses, co-conspirators or experts that,
taken
together, establish that each crime for which extradition is sought (1) was
committed (2) by the fugitive. Affidavits should be prepared with formal
captions showing the name of the court and the style of the case. Each
affiant
should state clearly and concisely the relevant facts, avoiding hearsay if
possible.
- Some common law countries have amended their domestic laws to make
the
requirements for extraditions somewhat less burdensome. However, in the
United
Kingdom, Canada, and most other common law countries, the documents in
support
of extradition must establish a prima facie case. A prima facie case is
established when the evidence submitted to the foreign magistrate would, if
standing alone, justify a properly instructed jury in returning a verdict of
guilty. Further, those countries, the United Kingdom, Canada, and other
common
law countries, do not accept hearsay in affidavits submitted in
support
of requests for extradition.
- The witnesses' affidavits do not necessarily have to be executed in
the
district where extradition is requested. Consult with the Office of
International Affairs regarding the foreign law governing how the affidavit
is
to be executed. For instance, in some countries, the affidavits may be
executed
before a notary public rather than a judge or magistrate but a certificate
of the
notary's authority may be required.
- Civil law countries are not as strict, but require factual support
for
every element of the crime which generally must meet a probable cause
standard.
For instance, hearsay is admissible in civil law countries, but is not
accorded
the same weight as first-hand knowledge.
- Grand Jury Transcripts.
A second, less-preferred means of
establishing the crime involves attaching copies of grand jury transcripts
to the
prosecutor's affidavit. This method causes problems because some countries
refuse to accept grand jury transcripts or may require an affidavit by the
witness adopting them as true in the present time; they tend to be less
concise
than affidavits (resulting in higher translation costs); they are not
accorded
the same weight as affidavits in some countries; and, you must first obtain
a
disclosure order under Fed. R. Crim. P. 6(e).
- Identity.
One of the few successful defenses in extradition
cases is mistaken identity. Prosecutors must establish that the person
whose
extradition is sought is the one who is accused or was convicted. Do so
with an
affidavit from an identifying witness, together with a photo of the
fugitive.
Use a single picture affixed to a plain sheet of paper with rivets or
partially
covered by the seal of the court. The picture, initialed and dated by the
identifying witness, should be attached to the witness's affidavit as an
exhibit.
The affidavit should refer to the exhibit and to the fact that it was
initialed
and dated by the witness. (Do not attach a photospread if you can avoid it;
if
you feel the need to show a photospread to the identifying witness to avoid
later
charges of a tainted identification (see Manson v. Brathwaite,
432
U.S. 98 (1977)), you can do so and then attach the selected photo to the
affidavit. Similarly, do not have the witness recount in the affidavit that
he
or she selected the photo of the accused from a photospread. The use of
photospreads invites needless argument before the foreign court.)
[cited in Criminal Resource Manual 609; USAM 9-15.240] |