Amicus Curiae Brief — Sanchez-Llamas v. Oregon

[Supreme Court, US.

FILED

| DEC 2 2 2005

: ae R

SEI OFFICE OF THE CLERK

ae eae ened

IN THE

Supreme Court of the United States

MOISES SANCHEZ-LLAMAS,

Petitioner,

Vv.

THE STATE OF OREGON

Respondent.

On Writ of Certiorari to the Supreme Court of Oregon

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS (NACDL) AND

THE LAW COUNCIL OF AUSTRALIA (LCA)

AS AMICI CURIAE IN SUPPORT OF PETITIONER

MOISES SANCHEZ-LLAMAS

Michael P. O'Connor, Esq. Prof. Thomas H. Speedy Rice*

2617 S. Palm Drive NATIONAL ASSOCIATION OF

Tempe, AZ 85282 CRIMINAL DEFENSE LAWYERS

(480) 968-6591 1150 18” Street, NW

Suite 950

Washington, D.C. 20036

(202) 872-8600

* Counsel of Record Counsel for Amici Curiae

(Additional Counsel! On Inside Cover)

Prof. Mary Pat Treuthart

Gonzaga University School of Law

721 N. Cincinnati St.

Spokane, WA 99202

(509) 323-3756

Mark Warren

Human Rights Research

P.O. Box 75

McDonalds Corners

Ontario, KOG IMO

Canada

(613) 278-2280

David Sabin Anderson

Vesna Coric

Filipa Kljajica 47, 3° Floor

11000 Belgrade

Serbia and Montenegro

(381)-11-244-8587

i

TABLE OF CONTENTS

Page

BE Ce FFE cccncsnsencesensensecsecensnsenssenennnnnnscens ili

RC eS CE ARTI CUTTIIA occeccecccscesssrscesenscssosensccsnasece l

SUMMARY OF ARGUMENT ....00........:cccccscssessseceerssseneeenes l

TE dicicicncinistunpsscnnssorniiiainmmaniaieniniintennenes 3

I. Individual Treaty Rights Compel the Recognition

and Enforcement of Appropriate Remedies............... 3

I. Suppre«sion is a Time-Honored Remedy for

Violations of Procedural Rights Essential] to the

Fair Administration Of Justice .............:cccsseeseeeeeeeees 5

A. Suppression Has Long Been Required for

Willful Violations of Non-Constitutional

PIE PIII setcicinsniccnicicintecennmnnrcenmecenend 6

B. Suppression is Available for Prejudicial

Violations of Statutory Rights That Provide

Access to Meaningful Support and

Se ce ccsctensnsstricansnstonnccsnnicnsstunmnemmenenennes 7

od Suppression Has Been the Historical

Remedy for Statements of Questionable

NII csiansessesteticincscisinitiinsniccnsisiiiisiaieipuitoianiaiiieal 9

‘i

TABLE OF CONTENTS continued

Page

D. Strict Adherence to Warnings and

Adequate Advisement of Rights are

Essential to Ensure the Reliability of

Statements and Police Respect for Binding

I SI, ccencessreseintnserevssncnmseresomneees 10

Ill. Non-Compliance With Article 36 Undermines the

Integrity of Criminal Proceedings. ...............0000e 12

IV. Suppression is Essential to Ensure Compliance with

IE Beh cs cncsinstsiinintnsinnanenenicinensinnesnaniipininapinannigies 15

A. Other Parties to the Vienna Convention

Provide Judicial Remedies such as

Suppression for Violations of Individual

a i i ccveenctencsnsceniiiinitinasaninntionsnn 16

1. Australian Courts Exclude Evidence

to Remedy Violations of Individual

a a

2. Courts in the United Kingdom Have

| Granted Suppression to Remedy

Consular Rights Violations ................ 20

V. In Determining Whether Suppression is Appropriate,

Courts Should Apply A Suitable Prejudice

BNET <eitiocintticcievsessotecisisnngsenenitetenesteengetenintnsicnedananie 23

ee eicdcnncsinninpiepsinpmunsenneinenaianmnpciqintiensnl 26

lik

TABLE OF AUTHORITIES

Page(s)

Federal Cases

Asakura v. Seattle, 265 U.S. 332 (1924).......cessssceeseesereeees 4

Blackburn v. Alabama, 361 U.S. 199 (1960) ...........::cceeerees 10

Bram v. U.S. 168 U.S. S32 (1GF7) ...ccrercrcsreccccccsevcvscovecsedeecnes 9

Breard v. Greene, 523 U.S. 371 (1998) .........:ccccceeseeseeseserenees 7

Brown v. Mississippi, 297 U.S. 278 (1936). ......ccccceseeeeeeeeees 9

Colorado v. Connelly, 479 U.S. 157 (1986) .......ccceceseeeeees 10

Connecticut v. Barrett, 479 U.S. 523 (1987) ....c.ccccccececeeeeeee 25

Edwards v. Arizona, 451 U.S. 477 (1981) ...ccccccesceseeeneeees 25

Foster v. Neilson, 27 U.S. 253 (1829) .............ccsccssscscesceseees 17

Teaday V. Gabe, STZ UB. FHS (UDB) .nnrecresecevecrerevessesesvesovenssete 8

Hauenstein v. Lynham, 100 U.S. 483 (1879) ........cccccececeeeeeee 4

Haynes v. Washington, 373 U.S. 503 (1963). ..........ccceeeeeee 10

Johnson v. Zerbst, 304 U.S. 458 (1938).........cccccccccceeeeseeeees 13

tiene v. Oregon, 366 U.S. 187 (1961) snataibiidiabidenii aaa 4

Mallory v. United States, 354 U.S. 449 (1957) ........:cccceceeeeeee 6

iv

Marbury v. Madison, 5 U.S. 137 (1803) .........:ccccceressereeeeenees 9

McNabb v. U.S., 318 U.S. 332 (1943) ...cccccccsecssesesererseseeseeees 6

Medellin v. Dretke, 125 S.Ct. 2088 (2005) ........ccccccceeeseseeeeees 4

Minnick v. Mississippi, 423 U.S. 96 (1975) .........ccccccecceeeeeee 25

Miranda v. Arizona, 384 U.S. 436 (1966) .............0... 9,11,23

Rochin v. California, 347 U.S. 165 (1952) .........cccccceceeeeeees 23

Roper v. Simmons, 125 S.Ct. 1183 (2005) ..............00.20+- 20, 23

Stanford v. Kentucky, 492 U.S. 361 (1989) .........ccccccccceeeseee 23

U.S. v. Briscoe, 69 F.Supp.2d 738 (D. Virgin Islands

U.S. v. Esparza-Ponce, 7 F.Supp.2d 1084 (S.D. Cal,

Sai eeiidaiciessanineninaieibanettetienibinbndahiantannctnseneeeenesresseneemeundes 24

U.S. v. Raven, 103 F.Supp.2d 38 (D.Mass. 2000)................ 24

U.S. v. Tapia-Mendoza, 41 F. Supp. 2d 1250 (D. Utah

SITET cinteihdenttvcisicanecnisenbereuttiaintaneneeensstansentdunsensenematsessasnesessees 24

United States v. Alvarez-Sanchez, 511 U.S. 350 (1994)........ 7

United States v. Chemaly, 741 F.2d 1346 (11th Cir. 1984) ...6

United States v. Doe, 862 F.2d 776 (9th Cir. 1988)............... 7

United States v. Doe, 170 F.3d 1162 (9th Cir. 1999)............. 6

; V

United States v. Doe, 701 F.2d 819 (9” Cir. 1983) leniesiaiai 7

United States v. Juvenile (RRA-A), 229 F.3d 737 (9th Cir.

IIIT cansicsersncnemtemetgncatdnmiinonimmmemnnetignenmeneniiiell 8,9, 15

United States v. Li, 206 F.3d 56 (1st Cir. 2000)................... 16

United States v. Lombera-Camorlinga, 206 F.3d 882

SE, Se te rrccsescenscssinnssenstnensecenicnninennimenmecnssil 6, 22

United States v. Marts, 986 F.2d 1216 (8th Cir. 1993).......... 6

United States v. Rivieccio, 919 F.2d 812 (2d Cir. 1990)........ 6

United States v. Villa-Fabela, 882 F.2d 434

SE ape ertnsnanicecnninnicenceteccnstinesmmmaimnmnengsmmusinienens 24

United States v. Doe, 170 F.3d.1162 (9th Cir. 1999)............. 7

Upshaw v. United States, 335 U.S. 410 (1948)... 6

Waldron v INS, 17 F.3d 511 (2d Cir. 1994) .00000. occ 4

State Cases

People v. Preciado-Flores, 66 P.3d 155

SA GUI, SEED cnccenencientnnsctinensnnsinasstunnndnentenaiicumansins 24

State v. Issa (2001), 93 Ohi St. 3d 49 on. ecccceceeeeeneeeeeees 22

State v. Martinez-Rodriguez, 33 P.3d 267 (N.M. 2001) ......23

vi

State v. Sanchez-Llamas, 108 P.3d 573, 578 (Or. 2005)......16

Torres v. State, 120 P.3d 1184 (Okla. Crim. App.

IED comnassanescnscnsnrsonsmmnsomensesemnenemmenneanemneneinants 24, 25

Zavala v. State, 739 N.E.2d 135 (Ind. App. 2000)............... 24

Statutes

ee Se nncmennnneremnnionaiils 21

ee SR ncccisnnencencnrenrnnnntecinmanntoaaint 21

Juvenile Delinquency Act, 18 U.S.C. 5033 ...........:.cccccceeeees 7

Treaties

Vienna Convention on Consular Relations, Apr. 24, 1963,

ye A a ee passim

International Cases and Materials

Avena and Other Mexican Nationals, (Mex. v. U.S.), 2004

eR passim

Factory at Chorzéw, 1927 P.C.1.J. (ser. A) m0. 9 ...........00000 4

Factory at Chorzdéw, Jurisdiction, 1927, P.C.1.J., Series A,

Vii

The Right to Information on Consular Assistance in the

Framework of the Guarantees of the Due Process of

Law, Advisory Opinion OC-16/99, Inter-Am. Ct. H.R.

a 14

Foreign Cases

Bunning v Cross (1978) 141 CLR 54 20. cceccccccceeeeeeneeeeeneees 18

De | 18

Duke v The Queen (1989) 180 CLR 508B...........cccccceeceesseneees 18

Foo v. The Queen [2001] NTCCA 2 (N. Terr. Ct. Crim.

IED cxcccsmenaccentenniiahnnmmsiaiteaianneianeaneninnsntnineimieansienniuiniies 19

Foster v The Queen (1993) 67 ALIR 550 .........0....cccceeeeeeeees 19

McDermott v. The King (1948) 76 CLR SO] .000........ecceceeees 18

Minister for Immigration and Ethnic Affairs v Teoh

ee 17

R_ v Ireland (1970) 126 CLR 321 ............cccscesseoeceecesssenseeees 18

R v Su (1997] 1 VR 1 (Sup. Ct. Vic.).............ccscccsccorsessesesees 19

R v Swaffield (1998) 192 CLR 159 000.0... .cscsscseceseesneeneeseenees 19

R. v. Bassil and Mouffareg (1990) 28 July, Acton Crown

EE EE

R. v. Tan [2001] WASC 275 (W. Aust. Sup. Ct.)............... 19

Vili

R. v. Van Axel and Wezer (1991) 31 May, Snaresbrook

ii acer 22

Tan Seng Kiah v R.. [2000] 10 NTLR 128 (N. Terr. Ct. Crim.

ED ccememmnasimns 19

Other Materials

Brief Amicus Curiae of the Association of the Bar of the

City of New York in Support of Petitioners ...................... 3

Brief Amicus Curiae of the Government of the United

Mexican States in Support of Petitioner...................+: 12, 13

Brief for Petitioner, Bustillo v. Johnson (No. 05-551)........... 3

Brief for Petitioner, Sanchez Llamas v. Oregon (No. 04-

TED ccinsssiinnitenstenentanteberienmnmenaienadininimemamimanintenninign 3

Carlos Manuel Vasquez, Treaty-Based Rights and

Remedies of Individuals, 92 COLUM. L. REV. 1082

| 4

CERES AGE FOS GED ccccccsccccasscecsscrscnssspsecsnsnesvensmecssenestens 17

ew ee pencauscssnseats 18

Gregory W. O'Reilly, England Limits the Right to Silence

and Moves Toward an Inquisitorial System of Justice,

85 J. CRIM. L. & CRIMINOLOGY 402 (1994) ..0......cccceeesees 13

IAN BROWNLIE, STATE RESPONSIBILITY (1983) ............0000000 4

ix

Israel, Kamisar & LaFave, CRIMINAL PROCEDURE AND

THE CONSTITUTION 311 (2004) 20......cccceccscceeseeeeeeeeeees 9,10

Internal Revenue Manual (2004), part 9.4.12.9 .........ccccceeees 21

John Quigley, Suppressing the Incriminating Statements

of Foreigners, 13 WM. & MARY BILL RTS. J. 339

STE cetmcticncennsneinttiinmuietnemnsnesbibestenscgnmeiitntammaienleleaities 14

LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES)

Ee I contncrenscctinintitinnapeeniniaininesininenene 18

LAW REVIEW COMMISSION OF NEW SOUTH WALES, REPORT

66 (1990) - CRIMINAL PROCEDURE: POLICE POWERS OF

DETENTION AND INVESTIGATION AFTER ARREST...........-. 18

Linda A. Malone, From Breard to Atkins to Malvo: Legal

Incompetency and Human Rights Norms on the Fringes

of the Death Penalty, 13 WM. & MARY BILL RTS. J. 363

Memorial of the United States, Tehran Hostages Case,

FO Cites CNR csreneemsnnsensnernsennitenenel 4,5

Police and Criminal Evidence Act of 1984 (PACS§&)......20, 21

POLICE POWERS AND RESPONSIBILITIES ACT 2000 (Qid).....18

Respondent’s Brief in Opposition, Sanchez-Llamas v.

Oregon, filed August 15, 2005 .0....0.......ccccsecsseeeeeeneeeneeees 24

RESTATEMENT (THIRD) OF THE LAW OF FOREIGN RELATIONS

Senne ena ee 4

x

THE GILBERT AND TOBIN CENTRE OF PUBLIC LAW,

Submission made to Parliamentary Joint Committee

on ASIO, ASIS and DSD on Questioning and Detention

ee ts He ecirtniincicrictnntegntsntinecntentmenannuines 18

Valencia et al., Avena and the World Court's Death

Penalty Jurisdiction in Texas: Addressing the Odd

Notion of Texas’s Independence From the World, 23

YALE L. & POL’Y REV. 455 (2005) ........ccccccccseeeeeeeeceeenens 15

1

INTEREST OF AMICI CURIAE'

The National Association of Criminal Defense Lawyers

(NACDL) is a District of Columbia nonprofit corporation

whose membership of more than 11,000 regular members

and 25,000 affiliate members include lawyers from every

state. NACDL is the only national bar organization working

exclusively on behalf of public and private criminal defense

lawyers and their clients. The American Bar Association

recognizes the NACDL as an affiliated organization with full

representation in the ABA House of Delegates). NACDL

members are in daily contact with the criminal justice

system, representing individuals in both state and federal

courts. NACDL works domestically and internationally to

ensure justice and due process for persons accused of crime;

to foster the integrity, independence and expertise of the

criminal defense profession; and to promote the proper and

fair administration of criminal justice.

Representing some 40,000 legal practitioners across the

country, the mission of the Law Council of Australia (LCA)

includes representing the legal profession at the national

level and promoting the administration of justice, access to

justice and general improvement of the law. The LCA

advises governments and courts on ways in which the law

and the justice system can be improved for the benefit of the

community. It is a member of several international legal

organizations, including the International Bar Association

(IBA) and the Commonwealth Lawyers Association (CLA).

SUMMARY OF ARGUMENT

The private and justiciable rights under Article 36 to the

Vienna Convention on Consular Relations (VCCR) compel

' Counsel for all parties have consented in writing to the filing of this

brief. No counsel for a party in this case authored this brief in whole or

in part, and no person or entity, other than the amici, has made a

monetary contribution to the preparation of this brief.

2

the recognition and enforcement of appropriate remedies.

Federal statutes, like treaties, are often silent with regard to

remedies. Nevertheless, the absence of specific remedial

language in a treaty or statute has never deterred this Court

from providing appropriate remedies for violations of

individual rights. Indeed, United States courts have

suppressed evidence as a remedy for a wide variety of both

constitutional and statutory violations, particularly when the

violation has the potential to impair the integrity of the

justice system.

Compliance with Article 36 provides critical protections

for detained foreign nationals who are disoriented, confused

and isolated in an unfamiliar legal system. Consular

notification allows foreign nationals to access a vital support

system that enables them to become full participants in the

criminal process. Foreign defendants can participate in their

own defense only when they are fully informed of their

rights, are provided with competent interpreters, and are able

to communicate effectively with attorneys and court

personnel. Yet when foreign nationals are deprived of their

rights to consular notification and access, these essential

attributes of the fair administration of justice are

undermined. For this reason, suppression is an entirely

appropriate remedy for Article 36 violations.

But suppression of incriminating statements is an

appropriate remedy for another reason, as well. The

availability of suppression as a remedy for Article 36

violations will simultaneously increase compliance with the

treaty’s provisions on consular notification and access and

deter law enforcement officers from ignoring their

obligations under the treaty. Allowing for the discretionary

suppression of statements thus promotes good police

practices which, in turn, advance the integrity of criminal

proceedings.

For these very reasons, other common law jurisdictions

3

have recognized that suppression of statements is an

appropriate remedy for Article 36 violations. In at least three

cases, Australian courts have applied suppression or

exclusion as the remedy for breaches of consular

communication rights. Courts in the United Kingdom have

likewise concluded that the failure to inform detained

foreigners of their consular rights warrants the discretionary

remedy of exclusion.

ARGUMENT

I. Individual Treaty Rights Compel the Recognition and

Enforcement of Appropriate Remedies

There is ample and uncontrovertable evidence that

detained foreign nationals have individual rights under

Article 36 of the Vienna Convention on Consular Relations.’

Given the existence of those rights, United States courts

must be empowered to provide adequate remedies for their

violation.’

It is neither surprising nor significant that the VCCR

does not define a remedy for a breach of its provisions, for it

is commonplace for “substantive nights [to] be defined by

[treaty] but the remedies for their enforcement left undefined

? Vienna Convention on Consular Relations, Apr. 24, 1963, art. 36, 21

U.S.T. 77, 34 U.N.T.S. 262. _

> Other briefs submitted to this Court explain in detail why Article 36

must rightfully be construed as conferring individual rights, a position

that the amici fully support. See, e.g., Brief for Petitioner, Bustillo v.

Johnson (No. 05-551); Brief for Petitioner, Sanchez Llamas v. Oregon

(No. 04-10566); Brief Amicus Curiae of the Association of the Bar of the

City of New York in Support of Petitioners.

4

or relegated wholly to the states.“ This Court has

recognized as much. In construing self-executing treaties

that confer rights on foreign nationals, the Court has neither

sought nor required specific remedial language before

fashioning appropriate remedies for viclations of those

treaty-based rights. See, e.g., Kolovrat v. Oregon, 366 U. S.

187 (1961); Asakura v. Seattle, 265 U. S. 332 (1924);

Hauenstein v. Lynham, 100 U.S. 483 (1879).°

Under international law, the recognized remedy for a

treaty violation is to restore the status quo ante by “wip{ing]

out all the consequences of the illegal act and

reestablish[ing] the situation which would, in all probability,

have existed if that act had not been committed.”

RESTATEMENT (THIRD) OF THE LAW OF FOREIGN RELATIONS

§ 901 (1987). See also IAN BROWNLIE, STATE

RESPONSIBILITY 210 (1983) (nullity is the necessary outcome

of illegality in international law). The United States has

acknowledged this international law of remedies as a

customary rule. Memorial of the United States, Tehran

Hostages Case, 1980 1.C.J. Pleadings at 188 (“It is a

principle of international law that the breach of an

engagement involves an obligation to make reparation in an

* Carlos Manuel Vasquez, Treaty-Based Rights and Remedies of

Individuals, 92 COLUM. L. REV. 1082, 1144 (1992) (quoting Hart &

Wechsler, THE FEDERAL COURTS AND THE FEDERAL SYSTEM 533 (1988).

See also Factory at Chorzow, 1927 P.C.I.J. (ser. A) no. 9, at 21.

> Significantly, none of the treaties addressed in these cases specified a

particular remedy for the breach of their nghts-conferring provisions.

See also Medellin v. Dretke, 125 S.Ct. 2088, 2104 (2005)(O’Connor,

Stevens, Souter, Breyer, JJ., dissenting) (language of other treaties found

to confer individual rights on foreign nationals “is arguably no clearer

than the Vienna Convention's is, and they do not specify judicial

enforcement.”). See also Waldron v. INS, 17 F.3d 511, 518 (2d Cir. .

1994) (invalidation of an immigration proceeding for a breach of

consular notification is an available remedy “upon a showing of

prejudice to the rights sought to be protected by the subject reguiation.’’).

5

adequate form.”’) (quoting Factory at Chorzdéw, Jurisdiction,

1927, P.C.1.J., Series A, No. 9, p. 21); cf. Avena and Other

Mexican Nationals, (Mex. v. U.S.), 2004 1.C.J. 128 (March

31, 2004), | 119 (“Avena”) (remedy for a treaty violation is

reparation in adequate form “that corresponds to the injury”).

This principle is in no way controversial, for as the U.S.

argued in Tehran Hostages “Reparation . . . is the

indispensable complement of a failure to apply a convention

and there is no necessity for this to be stated in the [Vienna]

Convention itself.” /d.

Acting in conformity with these long established

principles, the International Court of Justice (ICJ) recently

held that the United States was required to provide a judicial

remedy for Article 36 violations in the cases of Mexican

nationals facing severe penalties or prolonged incarceration.

Avena. 7 153(11) (United States must allow review and

reconsideration of affected nationals’ convictions and

sentences “so as to allow full weight to be given to the

violation of the rights set forth in the convention”). In doing

so, the ICJ called upon the United States courts to determine

whether the remedy of suppression would be appropriate

under the concrete circumstances of each case in which the

authorities had violated their obligations under Article 36,

and the defendant was sentenced to a severe penalty or

prolonged incarceration. Avena J 127.

II. Suppression is a Time-Honored Remedy for

Violations of Procedural Rights Essential to the Fair

Administration of Justice

Suppression as a remedy has been provided for a wide

variety of both constitutional and statutory violations.

Federal statutes, like treaties, are often silent with regard to .

remedies that flow from their violation. |§ Nevertheless,

courts have not hesitated to impose sanctions for statutory

6

violations in appropriate cases.°

A. Suppression Has Long Been Required for Willful

Violations of Non-Constitutional Procedural Rules

In McNabb v. U.S., 318 U.S. 332, 345 (1943), this Court

Overturned a conviction whefe a statement was taken in

violation of a procedural rule requiring prompt appearance

before a magistrate, reasoning that the convictions could “not

be allowed to stand without making the courts themselves

accomplices in willful disobedience of law.” In doing so,

this Court explicitly expanded the remedy of suppression

beyond those situations protecting a right “derived solely

from the Constitution.” J/d., at 341; see also Upshaw v.

United States, 335 U.S. 410, 413 (1948). Upshaw, like

McNabb, involved deliberate police misconduct in flouting a

procedural rule. 335 U.S. at 414. In both instances,

suppression was deemed necessary because the courts would

be tainted by the police misconduct if the statements were

admitted.

The rule adopted in McNabb was clarified in Mallory v.

United States, 354 U.S. 449 (1957). Mallory found a

confession to be inadmissible when obtained in violation of

Federal Rule of Criminal Procedure 5(a), which mandated

that the defendant be brought before a committing magistrate

“without unnecessary delay.” The Court stressed the role of

° See, e.g., United States v. Doe, 170 F.3d 1162, 1168 (9th Cir. 1999)

(suppression may be warranted where violation of Juvenile Protection

Act not harmless beyond a reasonable doubt); United States v. Marts,

986 F.2d 1216, 1218-19 (8th Cir. 1993) (exclusionary rule applies to

Statutory knock and announce rule); United States v. Rivieccio, 919 F.2d

812, 816 (2d Cir. 1990) (suppression appropriate remedy for misuse of

immunized testimony); United States v. Chemaly, 741 F.2d 1346, 1353-

54 & n.2 (11th Cir. 1984) (suppression appropriate where warrant statute

violated); United States v. Lombera-Camorlinga, 206 F.3d 882, 893 n.2

(9th Cir. 2000) (Thomas, J., dissenting) (collecting cases where

suppression provided for non-constitutional violations). .

7

timely warnings and the intervention of a third party

designed to safeguard an unknowledgeable and susceptible

defendant from overzealous police. 354 U.S. at 455. The

resulting McNabb-Mallory rule was used to suppress

voluntary statements because to do otherwise would

undermine confidence in the fair administration of justice.

354 US. at 456. ’

B. Suppression is Available for Prejudicial Violations

of Statutory Rights That Provide Access to

Meaningful Support and Counsel

Individual rights under the VCCR are on par with rights

_ created by federal statute. Breard v. Greene, 523 U.S. 371,

376 (1998), quoting Reid v. Covert, 354 U.S. 1, 18 (1957)

(plurality). In addressing violations of the statutory right to

parental notification under the Juvenile Delinquency Act

(JDA),® some lower courts have applied reasoning that is

strikingly reminiscent of the concerns that animated the

drafters of Article 36 to enshrine the rights to consular

notification and access. See, e.g. United States v. Doe, 701

F.2d 819, 822 (9" Cir. 1983) (requiring consular notification

to protect the rights of unaccompanied foreign juveniles); see

also Doe II, 862 F.2d 776, 780-81 (9th Cir. 1988). While the

Ninth Circuit has not automatically suppressed statements

taken in violation of the JDA, it has held that suppression

may be warranted where the violation is not harmless beyond

a reasonable doubt. Doe IV, 170 F.3d 1162, 1168 (9th Cir.

1999).

” Congress altered this rule through the Omnibus Crime Control and

Safe Streets Act of 1968 to deny suppre$sion solely on the grounds of

unreasonable delay, dispute among courts stil] exists as to the extent that

delay may be used to suppress a statement. See United States v. Alvarez-

Sanchez, 511 U.S. 350 (1994).

* 18 U.S.C. 5033. Section 5033 states that “the arresting officer . . . shall

immediately notify . . . the juvenile’s parents, guardian, or custodian of

such custody.”

The Ninth Circuit's assessment of harm in these cases is

closely linked to its assessment that juveniles are an

inherently vulnerable class of defendants. This Court has

likewise recognized the crucial importance of “counsel and

support” during interrogation for particularly vulnerable

individuals, such as juveniles, who are more likely “to

become the victim(s] first of fear, then of panic.” Haley v.

Ohio, 332 U.S. 596, 600 (1948). Detained foreign nationals

are similarly susceptible to fear and manipulation, both of

which are compounded by the language barriers they often

face. As one commentator has observed, language, culture

and separation from family

creates an aura of chaos surrounding a detained or

arrested foreign national, and inevitably leads to

diminished protection of rights critical from arrest

onwards. Article 36 of the Convention protects

against these problems by allowing detained foreign

nationals to contact and confer with a member of

their state's consulate.

Linda A. Malone, From Breard to Atkins to Malvo: Legal

Incompetency and Human Rights Norms on the Fringes of

the Death Penalty (hereafter MALONE), 13 WM. & MARY

_ BILRTS. J. 363, 392-93 (2004).

Due to the inherent vulnerability of detained foreign

juveniles, and their “exacerbated sense of isolation and

helplessness” the Ninth Circuit has held that officers must

“delay interrogation of the juvenile for a reasonable time to

allow consular notification and response.” United States v.

Juvenile (RRA-A), 229 F.3d 737, 746 (9th Cir. 2000)

(Suppression warranted for failure to contact consulate

before questioning). Notably, the JDA specifies no remedies

for its breach. Like the equivalent notification obligation

under Article 36, the cure for non-compliance with the JDA

stems from a basic recognition that “access to meaningful

support and counsel” are the touchstone of any adequate

9

advisement of rights. Juvenile RRA-A, 229 F.3d at 746; see

also Marbury v. Madison, 5 U.S. 137, 163 (1803) (U.S. law

must furnish a remedy for the violation of a vested legal

right).

C. Suppression Has Been the Historical Remedy for

Statements of Questionable Reliability

The Fifth Amendment privilege against compulsory self-

incrimination existed for more than one hundred years before

it served as a basis for suppression of an incriminatory

Statement in federal court proceedings in Bram v. U.S., 168

U.S. 532 (1897). Approximately seventy years later, in

Miranda vy. Arizona, 384 U.S. 436 (1966), this constitutional

provision served as the basis for the Court’s historic ruling

regarding the suppression of statements in state criminal

proceedings.

But even before Bram and Miranda, suppression of

Statements was the preferred remedy in the United States and

Britain to protect defendants from convictions based upon

unreliable confessions secured through improper means.

See, e.g., Israel, Kamisar & LaFaVe, CRIMINAL PROCEDURE

AND THE CONSTITUTION 311 (2004). While suppression

analyses were often couched in terms of “voluntariness,”

courts have long been more concerned with the

trustworthiness or reliability of statements obtained by the

police. See Bram, 168 U.S. at 543 (quoting 3 Russ. Crimes

(6th Ed.) 478) (reliability of a confession can be affected by

“any sorts of threats or . . . any direct or implied promises,

however slight”).

In 1936, this Court for the first time invoked the

Fourteenth Amendment’s due process clause to condemn

coercive interrogation practices by the States. See Brown v.

Mississippi, 297 U.S. 278 (1936). Noting that interrogation

is a fundamental component of the process through which a

State secures a-criminal conviction, the Brown Court applied

10

a federal due process analysis to state criminal prosecutions.

The conduct of interrogations by state law enforcement

officers thereby became subject to analysis and potential

invalidation under the Fourteenth Amendment.

Voluntariness continued to be the lens through which

interrogations were inspected, despite the sharp drop in

physically abusive interrogations following Brown. By

1960, this Court acknowledged that the “voluntariness”

analysis was really a shorthand way of invalidating

confessions that were obtained in a manner which offended a

“complex of values.” Blackburn v. Alabama, 361 U.S. 199,

207 (1960). This “complex of values” required suppression

of statements that were either (1) untrustworthy, (2) obtained

by offensive police practices, or (3) obtained under

circumstances in which the defendant’s free choice was

significantly impaired.” See LAFAVE ET. AL., CRIMINAL

PROCEDURE §6.2(b) (4th ed. 2000).

A totality of the circumstances test was adopted to assess

this more complex notion of voluntariness, requiring the

courts to carefully assess the actions of police during

interrogations. 10 However, as it has in other contexts, the

totality of the circumstances test has often proven imprecise

and incapable of uniform application. Due to this

imprecision, courts and other actors in the criminal justice

system sought out clearer rules for suppression that would

deter police misconduct while decreasing the problem of

unreliable confessions.

D. Strict Adherence to Warnings and Adequate

Advisement of Rights are Essential to Ensure the

* This third goal was effectively undermined if not eliminated by the

Court fifty years after Brown in Colorado v. Connelly, 479 U.S. 157

(1986) (invalidated suppression as a remedy in the absence of police

misconduct).

"© See Haynes v. Washington, 373 U.S. 503 (1963).

li

Reliability of Statements and Police Respect for

Binding Legal Obligations

Miranda changed the law significantly, but not the

underlying rationale for suppression. First, it articulated a

Fifth Amendment right to counsel, whose purpose was to

ensure that the defendant was not kept in isolation and

subjected to coercive tactics. 384 U.S. at 448-49, 465. The

second significant change adopted by Miranda was that

henceforth police officers would be required to warn a

criminal defendant of the constitutional rights to remain

silent, to have an attorney appointed if the defendant could

not afford one, and to have an attorney present during

questioning. /d. at 473-74. If a statement is taken outside

the presence of an attorney, a “heavy burden” falls upon the

prosecution to prove that the rights to be free from self-

incrimination and the right to counsel were knowingly and

intelligently waived. Jd. a 475. This heavy burden creates a

presumption in favor of suppression when statements are

taken without warnings and waivers. /d.

Miranda tied the required warnings and the presumption

in favor of suppression very strongly together. Statements

obtained during custodial interrogation in violation of the

dictates of Miranda are presumed involuntary and will be

suppressed. Following Miranda, suppression has been tied

more strongly to a violation of the warnings than it is to the

underlying right.

No amount of circumstantial evidence that the

person may have been aware of this right will

suffice to stand in its stead. Only through such a

warning is there ascertainable assurance that the

accused was aware of this right.

Id. at 471-72. In so articulating these rights, the Court held

thai suppression is warranted for a violation of the warning,

even if the defendant was actually aware of his underlying

12

rights. With this decision, this Court embraced a rule that

clarified the rights and obligations of defendants and law

enforcement personne! alike. Through their adoption of this

rule, the Court sought to establish an identifiable mechanism

for determining whether police misconduct had occurred, as

well as a means for curbing that misconduct. Jd. at 448-49.

In addition, the Court hoped to marshal an aid in determining

whether a defendant’s statement was voluntary and reliable.

Id. at 463, n. 33.

Ill. Non-Compliance With Article 36 Undermines the

Integrity of Criminal Proceedings

The Miranda decision and its progeny have in no way

eliminated the underlying purposes of suppression.

Suppression still serves the purposes of curbing police

misconduct during interrogations and ensuring that only

reliable statements are admitted into evidence. These

purposes are equally served by suppressing statements taken

by law enforcement officers who have failed to notify a

defendant of his Article 36 rights “without delay.”

Foreign nationals are particularly susceptible to coercive

interrogation tactics. Many, if not most foreign nationals,

like Mr. Sanchez-Llamas, confront linguistic and cultural

barriers that not only impede their understanding of their

rights under a foreign system of law, but can lead to false

confessions. See Brief Amicus Curiae of the Government

of the United Mexican States in Support of Petitioner

(“Mexico Amicus”) at 12. It is the

obvious truth that the average defendant does

not have the professional legal skill to protect

himself when brought before a tribunal with

power to take his life or liberty, wherein the

prosecution is represented by experienced and

learned counsel. That which is simple,

orderly, and necessary to the lawyer--to the

13

untrained layman--may appear intricate,

complex, and mysterious.

Johnson v. Zerbst, 304 U.S. 458, 462-63 (1938). To a

detained foreign national, the myriad rules that govern the

prosecution of serious criminal cases are not merely complex

and mysterious - they are unfathomable. As other amici

have noted, foreign criminal justice systems differ

fundamentally from one another, both in their formal rules

and in their practical operation. See Mexico Amicus at 10-

11. For example, the right to remain silent is anathema to

the inquisitorial systems of jstice predominant in much of

the world, which rely upon evidence from the defendant to

obtain convictions. See Gregory W. O'Reilly, England

Limits the Right to Silence and Moves Toward an

Inquisitorial System of Justice, 85 J. CRIM. L. &

CRIMINOLOGY 402, 406-07 (1994). Negative inferences can

be drawn from any attempt to remain silent in the face of

official questioning about a crime. The cultural norm of

cooperating with questioners is particularly strong in those

countries with dominant Catholic traditions, for the

inquisitorial method derives from the ecclesiastical courts.

Id. at 410-11.

Consular notification allows the national! to avail himself

of the assistance of consular officials who can explain the

differences between his home country and the United States,

including such fundamental concepts as the right to remain

silent, the notion that statements to the police can be used as

evidence in a court of law, the right to appointed counsel, the

role of a public defender, the nature of criminal charges and

the penalty that can be imposed after a conviction, the role of

plea bargaining, and the adversarial system of law. Consular

officers can even provide lawyers for defendants. See

Mexico Amicus at 12-13.

For these reasons, the Inter-American Court on Human

Rights has determined that Article 36 serves to protect an

14

inherently vulnerable group of detainees. See The Right to

Information on Consular Assistance in the Framework of the

Guarantees of the Due Process of Law, Advisory Opinion

OC-16/99, Inter-Am. Ct. H.R. (ser. A) No. 16 (Oct. 1, 1999)

at 4122 (recognizing that the individual right to consular

notification is “among the minimum guarantees essential to

providing foreign nationals the opportunity to adequately

prepare their defense and receive a fair trial”). The court

- observed that the provisions of Article 36 reflected a “shared

understanding that the right to information on consular

assistance is a means for the defense of the accused that has

repercussions -sometimes decisive repercussions- on

enforcement of the accused’s other procedural rights." Jd.

123.

The peculiar difficulties experienced by a foreign

national accused of a crime make it exceedingly unlikely that

Miranda warnings will suffice to protect foreign nationals’

rights and preserve the integrity of our domestic courts:

{FJoreign nationals are particularly prone to

succumbing to interrogation techniques aimed

at encouraging them to confess. . . Foreign

nationals may have particular difficulty

understanding the right to remain silent when

it is explained to them by a police officer

{who is interrogating them]. . . . [T]he VCCR

assumes that foreign nationals may benefit

from consular assistance and requires the

detaining authorities to facilitate this

assistance.

John Quigley, Suppressing the Incriminating Statements of

Foreigners, 13 WM. & MARY BILL RTS. J. 339, 340-41

(2004).

Article 36 serves as a safeguard to ensure that foreign

nationals have the support of individuals who can orient

15

them to the bewildering array of rules that govern the United

States criminal justice system. The provisions of Article

36(1)(b) set forth clear and easily enforced rules that

promote the integrity of the judicial process and help prevent

unreliable statements by defendants who do not understand

their interrogators. In short, Article 36 promotes many of the

same goals as the procedural rules whose violation led the

Court to suppress custodial statements in McNabb and

Mallory.

Moreover, Article 36 provides foreign defendants with

the right to seek the assistance of consular officers who are

empowered to assist them in obtaining legal representation at

a critical juncture in their criminal prosecution. In this

manner, consular officers serve much the same function as

parents of detained juveniles — and the authorities’ failure to

enforce the rights of consular notification and access should

be treated in the same manner as the Ninth Circuit addressed

violations of the Juvenile Protection Act in United States v.

Juvenile (RRA-A), 229 F.3d at 746.

IV. Suppression is Essential te Ensure Compliance with

Article 36 -

Thirty-six years after the United States ratified the

Vienna Convention, state actors still openly resist enforcing

the treaty, rejecting the authority of the International Court

of Justice and claiming that they cannot be held responsible

for violations of Article 36. See, e.g., Valencia et al., Avena

and the World Court’s Death Penalty Jurisdiction in Texas:

Addressing the Odd Notion of Texas’s Independence From

the World, 23 YALE L. & POL’Y REV. 455, 456-57 (2005)

(quoting spokesman for Texas Governor Rick Perry as

stating, “Obviously the governor respects the world court's

right to have an opinion, but the fact reraains they have no

standing and no jurisdiction in the state of Texas.”) The

ongoing reluctance of state law enforcement officers to

comply with their obligations to enforce the treaty’s

16

provisions argues strongly in favor of suppression. Only by

providing remedies for Vienna Convention violations will

courts ensure future compliance with the United States’

binding treaty obligations.

A. Other Parties to thie Vienna Convention Provide

Judicial Remedies such as Suppression for

Violations of Individual Consular Rights

The lower court in this case concluded that suppression is

never available for a breach of Article 36 rights, relying

largely on the State Department’s assertion that “the [only]

remedies for failures of consular notification under the

[Vienna Convention] are diplomatic, political, or exist

between states under international law.” State v. Sanchez-

Llamas, 108 P.3d 573, 578 (Or. 2005) (citing United States

v. Li, 206 F.3d 56, 63 (1st Cir. 2000)). The lower court

likewise relied upon the State Department’s claim that “no

other signatories to the Vienna Convention have permitted

Suppression under similar circumstances.” Sanchez-Llamas,

108 P.3d 573, 578. Both claims are incorrect as a matter of

law. As to the first, the ICJ has clearly held that the United

States must provide a judicial remedy for Article 36

violations in cases involving severe penalties or prolonged

incarceration. Avena JJ] 121, 122, 127, 140-41. As to the

second, both the lower court and the State Department

overlooked decisions from Australia and the United

Kingdom in which courts have excluded incriminating

Statements or evidence after finding that the authorities

neglected to notify foreign detainees of their consular rights.

1, Australian Courts Exclude Evidence to

Remedy Violations of Individual Consular

Rights

The Australian government has codified its Article 36

obligations in Part 1(C), Section 23P, of the Crimes Act

17

1914."'_ Under Section 23P, federal police must advise

detained foreigners of their right to consular notification

prior to any interrogation and must then notify the consulate

upon request, allowing the detainee a “reasonable time” and

facilities to communicate with the consulate. In addition,

“an investigating official must not start to question the

person” until these requirements have been met.'? At least

three Australian states (Victoria, New South Wales and

Queensland) have similar legislation requiring investigating

officers to advise suspects who are foreign nationals of their

right to consular communication before any questioning

commences, to provide “reasonable facilities” to allow them

to communicate with their consulate and to defer questioning

for a reasonable period of time until that contact has taken

'! Few nations follow the American legal doctrine of treaty self-

execution, requiring instead that a ratified treaty must be given domestic

effect by separate executive or legislative implementation. See Foster v.

Neilson, 27 U.S. 253, 314 (1829) (general rule that a treaty “is carried

into execution by the sovereign power of the respective parties” but that

in the United States “a different principle—is established” under the

Supremacy Clause, whereby a treaty is “to be regarded in courts of

justice as equivalent to an act of the legislature, whenever it operates of

itself without the aid of any legislative provision.”); cf. Minister for

Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-287

per Mason CJ and Deane J (“It is well established that the provisions of

an international treaty to which Australia is a party do not form part of

Australian law unless those provisions have been validly incorporated

into our municipal law by statute.) One must therefore look to foreign

judicial decisions enforcing the enabling statutes to discover the true

scope of judicial remedies afforded for violations of Article 36 rights by

other parties to the VCCR.

'? Although the Avena judgment found that Article 36(1)(b) “cannot be

interpreted to signify that the provision of such [consular nghts]

information must necessarily precede any interrogation,” it is important

to note that the treaty is required to be enforced through the laws of the

receiving state, and those laws are required to give the treaty its full

effect. Avena § 87(emphasis added). This is precisely what Australia has

done.

18

place.'? These state and federal legislative provisions were

enacted pursuant to Australia’s view of its binding

international legal obligations under article 36(1)(b).'*

At common law in Australia, judges have the

discretionary power to exclude unlawfully obtained

evidence. See Bunning v Cross (1978) 141 CLR 54, 72 (per

Stephen & Aickin JJ) (citing R v Ireland (1970) 126 CLR

321). Courts may exclude confessions in the exercise of

either their “public policy” discretion’> or a more general

“unfairness” discretion."© The unfairness discretion focuses

on the effect of the unlawful or improper conduct on the

accused and is designed to protect his rights and privileges;

'3 See CRIMES ACT 1958 (Vic), s.464F; Law ENFORCEMENT (POWERS

AND RESPONSIBILITIES) ACT 2002 (NSW); POLICE POWERS AND

RESPONSIBILITIES ACT 2000 (Qld), s.261.

'* See LAW REVIEW COMMISSION OF NEW SOUTH WALES, REPORT 66

(1990) - CRIMINAL PROCEDURE: POLICE POWERS OF DETENTION AND

INVESTIGATION AFTER ARREST, para. 5.43 and fm. 81, at

http://www. lawlink.nsw.gov.au/Irc.nsf/pages/R66CHPS (citing para. 6.12

of the Gibbs Committee Review of Commonwealth Criminal Law of

1991); THE GILBERT AND TOBIN CENTRE OF PUBLIC LAW, Submission

made to Parliamentary Joint Committee on ASIO, ASIS and DSD on

Questioning and Detention Powers (March 24, 2005), p. 10,

http://www.aph.gov.au/house/committee/pjcaad/asio_ques_detention/sub

s/sub55.pdf.

'S The public policy discretion involves weighing the interest in a

conviction against “the public interest in the protection of the individual

from unlawful and unfair treatment. Convictions obtained by the aid of

unlawful or unfair acts may be obtained at too high a price. Hence the

judicial discretion.” Ireland, 126 CLR at 335 (per Barwick, J.)

‘© Cleland v. R (1982) 151 CLR 1. The unfairness discretion has

operated long before the public policy discreuon. See McDermott v. The

King (1948) 70 CLR 501, 512-3 (per Dixon J.). It operates where “by

reason of the manner of the investigation, it is unfair to admit evidence of

the confession, whether because the reliability of the confession has been

made suspect or for any other reason, that evidence should be excluded.”

Duke v The Queen (1989) 180 CLR 508 at 513 (per Brennan CJ).

~_—*

_——

19

the public policy discretion focuses on constraining law

enforcement authorities so as to prevent them from engaging

in illegal or improper conduct and is designed to further the

public interest.

In at least three cases, Australian courts have applied

suppression or exclusion as the remedy for breaches of, inter

alia, consular communication rights.'® In these cases, the

Australian courts have given careful consideration to the

assistance consular officers can provide:

Contacting the consular office by a detained foreign

national provides an opportunity to report his or her

circumstances, seek advice and assistance, provides

a means of informing relatives and friends of his or

her situation and all this in his or her native

language. One need only contemplate the

predicament of an Australian national held in

custody in a foreign non-English speaking country

without access to an Australian consular office to

appreciate the importance of the right... .

Tan Seng Kiah, {2002] NTCCA | at 49. The Tan Seng Kiah

court also emphasized that timely access to consular

assistance is an independent right, for which the provision of

legal counsel or an interpreter is not a substitute:

These rights are part of the statutory scheme

introduced to provide protection to people detained

by police. . .The right to consult a legal practitioner

'? Foster v The Queen (1993) 67 ALJR 550, 554; 113 ALR 1 at 6-7. The

High Court has begun to synthesize these two related and overlapping

discretions. See R v Swaffield (1998) 192 CLR 159, 194-5.

'8 See Rv. Tan [2001] WASC 275 (W. Aust. Sup. Cr); R v Su [1997] }

VR 1 (Sup. Ct. Vic.); Tan Seng Kiah v R.. [2000] 10 NTLR 128 (N. Terr.

Ct Crim. App.) (Austl.); see also Foo v. The Queen {2001} NTCCA 2

(N. Terr. Ct. Crim. App.) at 44.

20

or to attempt to do so and the right to contact the

consular office or to attempt to do so are rights

independent of the right of access to an interpreter.

They are rights available to be enjoyed “as soon as

practicable”.

Id. at 51. Finding that the defendant might have declined to

give a statement if he had been permitted to exercise his

rights under section 23P, the court suppressed his statement.

Id. at 72.

2. Courts in the United Kingdom Have

Granted Suppression to Remedy Consular

Rights Violations

“The United Kingdom’s experience bears particular

relevance here in light of the historic ties between our

countries.” Roper v. Simmons, 125 S.Ct. 1183, 1199 (2005).

The rules governing apprehension, arrest, detention,

questioning and other custodial issues in England and Wales

are set down in the U.K. Police and Criminal Evidence Act

of 1984 (PACE). The act is supplemented by the Codes of

Practice, which give practical guidance in the treatment of

suspects, prisoners and defendants.'? As provided for in

Code C, paragraph 7.1, detained foreign nationals must be

informed “as soon as practicable” of their right to

communicate with their consulate at any time, as well as

their right to have their consulate notified of the detention.

_ Under paragraph 7.3, consular officers “may visit one of

their nationals in police detention to talk to them and, if

required, to arrange for legal advice.” Paragraph 7.5 requires

that a record be made “when a detainee is informed of their

rights under this section and of any communications” with an

embassy or consulate.””

'? The Codes of Practice are available at:

http://police.homeoffice.gov.uk/operational-policing/powers-pace-

codes/pace-codes.hunl.

21

The language and intent of these provisions is

remarkably similar to U.S. regulations and operational

policies governing the arrest or detention of foreign nationals

by federal agencies. See 8 C.F.R. 236.1(e) (Department of

Homeland Security); 28 C.F.R. 50.5(a) (Department of

Justice); see also Internal Revenue Manual, part 9.4.12.9,

(placing the onus on “the arresting agent” to “promptly

inform” foreign detainees of their consular rights and “to

ensure that notification is immediately given” to the nearest

consulate). As in the federal regulations, the procedure to be

followed under the PACE Code is explicit and mandatory.

In both countries, the mandated procedures closely adhere to

the plain language of Article 36. ,

Although the Code of Practice does not expressly require

the suspension of an interrogation pending consular

notification, courts in the United Kingdom have concluded

that the failure to inform detained foreigners of their consular

rights warranted the discretionary remedy of exclusion.

Suppression of custodial statements has been ordered even

where the foreign suspects were advised of and waived their

right to counsel.” R. v. Bassil and Mouffareg (1990) 28

2© The explanatory n for this section declares: “The exercise of the rights

in this section may not be interfered with” even in cases where a detainee

may be otherwise held incommunicado, such as suspects detained under

the Terrorism Act 2000.

*" According to a State Department submission to the Avena Court, other

parties to the VCCR have likewise adopted specific requirements to

safeguard the individual rights enshrined under Article 36, such as

Denmark's practice of informing the detained person of “his rights to

remain silent and to contact his consulate; if the detainee at this point

does not wish the interrogation to continue it will be stopped until

consular notification is provided.” See 2 Counter-Memorial of the United

States of America (Mex. v. U.S.), Annex 4 at A384, note 7, (Nov. 3,

2003). In New Zealand, “law enforcement officials in practice stop

interrogation if the individual asks for legal representation or to consult

with the consulate.” Jd. In Brazil, “consular notification is considered

one of the ‘rights’ under Article 5” of the Brazilian Constitution, which

22

July, Acton Crown Court, HHJ Sich (reported in Legal

Action 23, December 1990); R. v. Van Axel and Wezer

(1991) 31 May, Snaresbrook Crown Court, HHJ Sich

(reported in Legal Action 12, September 1991).

Like their Australian counterparts, the British courts have

recognized the unique significance of consular contact by

ensuring that foreigners facing interrogation truly

comprehend their legal rights and options. In its decision to

exclude the custodial statements of two Lebanese

defendants, the Bassil and Mouffareg court observed that a

French or Arabic speaking consular official would have

visited the defendants, assisted them in reaching an informed

decision about their situation, and might well have advised

them to obtain the assistance of counsel before making a

Statement.

Domestic courts holding that suppression is not an

available remedy for an Article 36 violation because they

found “no reason to think the drafters of the Vienna

Convention had these uniquely American rights in mind”

have missed an important point. See, e.g., Lombera-

Camorlinga, supra, 206 F.3d at 886; United States v. Page

232 F.3d 536, 541 (6” Cir. 2000); State v. Issa (2001), 93

Ohio St. 3d 49, 56, fn. 2. There is nothing uniquely

American about enforcing the rights to consular notification

and access: as the practices of other VCCR parties indicate,

access to timely consular notification is widely regarded as

requires that an arrested person will be informed “of the nght to remain

silent and the right to have legal and familiar assistance.” /d. at 381, n.2.

Moreover, countries as diverse as Poland, Ireland, Indonesia have all

enshrined the detainee’s right to prompt consular information and

notification in their national codes of criminal procedure. See Code of

Criminal Procedure (Act of 6 June 1997), art. 612(2) (Poland); Criminal

Justice Act, 1984 (Treatment Of Persons In Custody In Garda Siochana

Stations) Regulations 1987, Reg. 14 (Ireland); Law of Criminal

Procedure (KUHAP), art. 57 (2) (Indonesia).

23

an essential legal right. Indeed, nations that share our

common law heritage have responded to violations of

individual consular rights by applying judicial measures such

as suppression. This Coe has long recognized the

relevance of that shared legal heritage in determining the

necessary scope of individual rights and remedies. “Tt

does not lessen our fidelity to the Constitution or our pride in

its origins to acknowledge that the express affirmation of

certain fundamental rights by other nations anc »eoples

simply underscores the centrality of those same rig.its within

our own heritage of freedom.” Roper v. Simmons, 125 S.Ct.

1183, 1200 (2005).

V. In Determining Whether Suppression is

Appropriate, Courts Should Apply A Suitable

Prejudice Standard '

Although the court below did not directly address the

question of remedies, it did cite with approval a sister court’s

decision holding that prejudice can never be demonstrated

for an Article 36 violation where a foreign defendant has

properly waived Miranda rights.” This presumption

dangerously blurs the somewhat complementary yet

fundamentally distinct nature of the two sets of rights at

issue.

2 See, e.g., Miranda v. Arizona, 384 U.S. 436, 488 0.59, 521-22 (1966)

(comparing U.S. practice with that in India, Sri Lanka, and Scotland);

Rochin v. California, 342 U.S. 165, 169 (1952) (Due Process Clause

obliges courts to ascertain whether laws offend “those canons of decency

and fairness which express the notions of justice of English-speaking

peoples”); see also Stanford v. Kentucky, 492 U.S. 361, 369 n.1 (1989)

(finding that “the practices of other nations, particularly other

democracies” could be “relevant to determining whether a practice [is} so

implicit in the concept of ordered liberty that it occupies a place not

merely in our mores, but, text permitting, in our Constitution as well”).

* See State v. Martinez-Rodriguez, 33 P.3d 267, 276 (N.M. 2001), cert.

denied, 535 U.S. 937, 122 S.Ct. 1317, 152 L.Ed.2d 225 (2002).

24

The most appropriate standard of review in these

circumstances is that cited by the State of Oregon in its

pleadings before this Court; namely, the three-prong

prejudice test that has been cited with approval by state and

federal courts around the country.*> Under this analysis, the

defendant has the burden of establishing prejudice by

producing evidence that: (1) he did not know of his consular

rights; (2) he would have availed himself of those rights if he

had been so advised; and (3) there was a likelihood that the

contact [with the consulate] would have resulted in

assistance to him.” This test was recently cited and applied

by the Oklahoma Court of Criminal Appeals in Torres v.

State, 120 P.3d 1184, 1187 (Okla. Crim. App. 2005):

It is often impossible to say whether a particular

action in a criminal trial could affect the outcome.

However, it is possible to show what particular

assistance, if any, a government would offer its

citizen defending against a crime in a foreign

country. That is the right and privilege safeguarded

by the Convention. This Court is unwilling to raise

the bar beyond that which the Convention

guarantees. If a defendant shows that he did not

know he could have contacted his consulate, would

have done so, and the consulate would have taken

* Sanchez-Llamas v. Oregon, Respondent's Brief in Opposition, filed

August 15, 2005, available at 2005 WL 2974438.

*® See, e.g., U.S. v. Esparza-Ponce, 7 F.Supp.2d 1084, 1097 (S.D. Cal.

1998); U.S. v. Raven, 103 F.Supp.2d 38 (D.Mass. 2000); U.S. v. Tapia-

Mendoza, 41 F. Supp. 2d 1250, 1254 (D. Utah 1999); U.S. v. Briscoe, 69

F.Supp.2d 738, 747 (D. Virgin Islands 1999); People v. Preciado-Flores,

66 P.3d 155, 161 (Colo. App. 2002); Zavala v. State, 739 N.E.2d 135,

142 (Ind. App. 2000).

*® United States v. Villa-Fabela, 882 F.2d 434, 440 (9th Cir.1989),

overruled on other grounds by United States v. Proa-Tovar, 975 F.2d

592, 594-95 (9th Cir.1992) (en banc).

25

specific actions to assist in his criminal case, he will

have shown he was prejudiced by the violation of

his Vienna Convention rights.

The Oklahoma court further noted that this prejudice test

was consistent with the requirements of Avena:

The phrase “actual prejudice” [in Avena] can refer

only to prejudice flowing from the violation of the

purpose of the Convention provision. That purpose

is to ensure that a foreign citizen has the

Opportunity for aid from his or her government in

an unfamiliar criminal jurisdiction. Whether or not

the aid results in a different case outcome, a citizen

must be actually prejudiced when he is denied aid

his government would have provided.

Id. at 1188.

It would certainly be inappropriate to subsume the

distinct right of consular notification into the question of

whether a defendant has waived his rights under Miranda.

Rights granted to an individual are distinct and waiver of one

does not encompass a waiver of another. This is true even

when the rights are closely related as are the Fifth

Amendment rights to counsel and silence encompassed in

the Miranda warnings itself. See e.g. Connecticut v.

Barrett, 479 U.S. 523, 529-30 (1987) (defendant

contemporaneously waived his right to silence and invoked

right to counsel); see also Edwards v. Arizona, 451 U.S. 477,

484-85 (1981) (specific invocation of right to counsel does

not preclude subsequent voluntary waiver of right to remain

silent); and see Minnick v. Mississippi, 423 U.S. 96, (1975)

(invocation of right to remain silent does not invoke the right

to counse] at al] subsequent efforts at interrogation). Just as

the waiver of one Fifth Amendment right under Miranda

does not waive a distinct but related right, the waiver of a

defendant’s Miranda rights does not imply a waiver of his

26

rights to consular notification and access under an unrelated

treaty.

CONCLUSION

Both domestic and international law require that an

adequate remedy be provided to protect established rights.

Suppression should be one of the remedies available to the

lower courts in their assessment of Article 36 violations, and

the judgment of the Oregon Supreme Court should be

reversed.

Respectfully submitted,

Prof. Thomas H. Speedy Rice

Counsel for Amici Curiae

National Association of

Criminal Defense Lawyers

1150 18th Street, NW, Suite 950

Washington, D.C. 20036

(202) 872-8600

Dated: December 22, 2005

Washington, D.C.