Letters rogatory are the customary method of obtaining assistance from abroad in the absence of a treaty or executive agreement. A letter rogatory is a request from a judge in the United States to the judiciary of a foreign country requesting the performance of an act which, if done without the sanction of the foreign court, would constitute a violation of that country's sovereignty. Prosecutors should assume that the process will take a year or more. Letters rogatory are customarily transmitted via the diplomatic channel, a time-consuming means of transmission. The time involved may be shortened by transmitting a copy of the request through Interpol, or through some other more direct route, but even in urgent cases the request may take over a month to execute. See Paragraph B below (fifth item re translation and transmission).
- Content: The form of a letter rogatory depends on the country to which it is addressed and the assistance sought. Some countries have statutory guidelines for granting assistance. Assistant United States Attorneys should seek specific guidance from the Office of International Affairs (OIA) before drafting a letter rogatory. See this Manual at 281 (drafting guidelines).
Letters rogatory generally include: (1) background (who is investigating whom and for what charge); (2) the facts (enough information about the case for the foreign judge to conclude that a crime has been committed and to see the relevance of the evidence that is being sought); (3) assistance requested (be specific but include an elastic clause to allow subsequent expansion of the request without filing an additional letter rogatory); (4) the text of the statutes alleged to have been violated; and (5) a promise of reciprocity.
Letters rogatory must be signed by a judge and, normally, authenticated by (1) an apostille, (2) an exemplification certificate, (3) a chain certificate of authentication, or (4) as directed by OIA. If the requested state has ratified the Hague Convention Abolishing the Requirement of Legalization of Foreign Public Documents, it is preferable to use an apostille. The chain certification is a cumbersome process involving authentication by the Department of Justice, the Department of State, and the embassy of the foreign country to which the letter rogatory is directed. Consult OIA to ascertain which method to use because authentication requirements change frequently.
- Procedure: First, obtain a model from OIA and check with OIA to ascertain the requirements of the particular country.
Second, prepare a draft (see this Manual at 281 for drafting guidelines) and send it to OIA for clearance.
Third, secure a judge's signature. Submit the cleared final to the district court in two originals under cover of an application for issuance of letters rogatory and a memorandum in support, models of which have been obtained from OIA. One signed original letter rogatory remains with the court.
Fourth, authenticate as directed by OIA. Unless OIA has instructed you differently, affix an apostille or other authentication to the signed duplicate original and send it and two copies to OIA.
Fifth, make arrangements for translation (see this Manual at 282) of the letter rogatory (not the application or supporting memorandum) and send the duplicate original with translation to OIA, which will transmit it to the Department of State, the American Embassy in the country concerned, or directly to the appropriate ministry or authority in the country concerned. If OIA transmits the letter rogatory with translation via the diplomatic channel, the Embassy will send it to the Foreign Ministry under cover of a diplomatic note, the Foreign Ministry will usually refer it to the Ministry of Justice, and the Ministry of Justice will usually forward it to the proper judicial authority where it will be executed. Normally, the evidence, once obtained, is returned through the same channel by which the request was transmitted. In some cases, the request is sent to an attorney in the foreign jurisdiction who is retained to present the request, obtain the evidence, and deliver it to the United States.
[cited in Criminal Resource Manual 274]