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609. Evidence Of Conviction

For fugitives who have been convicted and either escaped or otherwise failed to complete their sentences, extradition treaties dispense with the requirement of establishing the crime through affidavits. Instead, the treaties require proof of conviction. In United States practice, conviction means a finding of guilt (i.e., a jury verdict or finding of fact by the judge) and imposition of sentence. If the defendant fled after the verdict but before sentencing, he or she has not been convicted, and the prosecutor must supply the affidavits described in this Manual at 608, unless the treaty specifically equates conviction with a finding of guilt.

The conviction may be proved by a certified copy of the Judgment and Commitment Order or the equivalent state form. Proof that the fugitive is unlawfully at large may take the form of an affidavit from the warden of the institution from which the fugitive escaped, or from the marshal if the fugitive failed to surrender after sentencing. The time remaining to be served (not counting reductions for good behavior) must be stated.

The facts and procedural history of the case must be explained fully and clearly in the prosecutor's affidavit, particularly if the defendant was sentenced in absentia. Evidence of the fugitive's identity as described in this Manual at 608, must be attached to the prosecutor's affidavit, together with the statutes under which the fugitive was convicted. See this Manual at 607. Most civil law countries have a statute of limitations on the time for execution of a sentence. The prosecutor's affidavit should therefore include an express statement that execution of the sentence is not barred by any statute of limitations under United States law.

If the fugitive has been charged with escape, check with the Office of International Affairs to see whether escape is an extraditable offense in the country of refuge. If not, the warrant for the charge of escape may be unnecessary because the fugitive cannot be tried for that offense. If it is an extraditable offense, the prosecutor must proceed on that charge as for an offense for which the fugitive has not been convicted. See this Manual at 605 and 606.

[cited in Criminal Resource Manual 605; Criminal Resource Manual 608; USAM 9-15.240]

Updated May 21, 2015