# Amicus Curiae Brief — Sanchez-Llamas v. Oregon

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0119%3A19

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 548 U.S. 331

## Text

[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 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0119%3A19. Public record. Not legal advice.