283. Documentary Evidence

Prosecutors frequently require documents such as bank or hotel records. Obtaining records through formal requests is relatively easy when compared to requesting depositions (see this Manual at 285) but prosecutors should be aware of two points.

First, foreign judicial authorities frown on fishing expeditions. If the scheme started two years ago, refrain from asking for all records from the time the account was opened. Limit the request in such a way that its relevance is evident from the recitation of the facts. If there is a valid reason for making a broader request, explain why. Bear in mind that parties affected by disclosure may have a right to object under the law of the country to which the request is made. Consequently, the more precise the request, the easier it will be to defend against such an objection.

Second, documentary materials must be authenticated to be received in evidence in a United States court. The easiest method of authentication of foreign business records is set forth at 18 U.S.C. § 3505. It requires completion of an affidavit by the custodian of the records attesting to the facts surrounding their making and maintenance. A form affidavit is available from the Office of International Affairs. Other methods of authentication are provided in 18 U.S.C. § 3491 et seq. and in some of the treaties under which requests for assistance can be made. However, they tend to be more cumbersome.