Suppressing the Incriminating Statements of Foreigners

26 Pages Posted: 16 Jun 2004

See all articles by John Bernard Quigley

John Bernard Quigley

Ohio State University (OSU) - Michael E. Moritz College of Law

Abstract

Under the Vienna Convention on Consular Relations, foreign nationals are entitled, upon arrest, to be informed of their right to contact a consulate of their home state for assistance in any criminal charge that may be made against them. Police in the United States often fail to provide this information but interrogate and elicit an incriminating statement. This Article argues that such a statement is inadmissible. The Article analyzes the issue in light of the text and drafting history of the Vienna Convention on Consular Relations, and two recent decisions of the International Court of Justice construing the Convention. The two cases were brought against the United States by Germany (LaGrand decision, 2001), and Mexico (Avena decision, 2004). These decisions are available on the court's website. This issue has yet to be addressed by the U.S. Supreme Court. It has been addressed by several U.S. courts of appeals, which have ruled that incriminating statements made under these circumstances are admissible. The Article criticizes these decisions, as well as views presented to the courts by the U.S. Department of State. The Article in particular criticizes the Department's reference to court decisions in Italy and Australia, which the Department claims to hold that no judicial remedy is required for a failure to inform a foreign national about consular access. The Article argues that those court decisions do not so hold.

Keywords: consul, interrogation, foreign national, incrimination, admissibility

JEL Classification: K33, K42

Suggested Citation

Quigley, John Bernard, Suppressing the Incriminating Statements of Foreigners. Available at SSRN: https://ssrn.com/abstract=555363

John Bernard Quigley (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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