Affidavits. If the fugitive has not been convicted, it will be necessary to provide affidavits establishing the commission of the crime and the identity of the fugitive as the author of the crime. (If the fugitive has been convicted, see this Manual at 609. To satisfy this requirement, the prosecutor should prepare affidavits for signature by investigators, witnesses, co-conspirators or experts that, taken together, establish that each crime for which extradition is sought (1) was committed (2) by the fugitive. Affidavits should be prepared with formal captions showing the name of the court and the style of the case. Each affiant should state clearly and concisely the relevant facts, avoiding hearsay if possible.
Some common law countries have amended their domestic laws to make the requirements for extraditions somewhat less burdensome. However, in the United Kingdom, Canada, and most other common law countries, the documents in support of extradition must establish a prima facie case. A prima facie case is established when the evidence submitted to the foreign magistrate would, if standing alone, justify a properly instructed jury in returning a verdict of guilty. Further, those countries, the United Kingdom, Canada, and other common law countries, do not accept hearsay in affidavits submitted in support of requests for extradition.
The witnesses' affidavits do not necessarily have to be executed in the district where extradition is requested. Consult with the Office of International Affairs regarding the foreign law governing how the affidavit is to be executed. For instance, in some countries, the affidavits may be executed before a notary public rather than a judge or magistrate but a certificate of the notary's authority may be required.
Civil law countries are not as strict, but require factual support for every element of the crime which generally must meet a probable cause standard. For instance, hearsay is admissible in civil law countries, but is not accorded the same weight as first-hand knowledge.
Grand Jury Transcripts. A second, less-preferred means of establishing the crime involves attaching copies of grand jury transcripts to the prosecutor's affidavit. This method causes problems because some countries refuse to accept grand jury transcripts or may require an affidavit by the witness adopting them as true in the present time; they tend to be less concise than affidavits (resulting in higher translation costs); they are not accorded the same weight as affidavits in some countries; and, you must first obtain a disclosure order under Fed. R. Crim. P. 6(e).
Identity. One of the few successful defenses in extradition cases is mistaken identity. Prosecutors must establish that the person whose extradition is sought is the one who is accused or was convicted. Do so with an affidavit from an identifying witness, together with a photo of the fugitive. Use a single picture affixed to a plain sheet of paper with rivets or partially covered by the seal of the court. The picture, initialed and dated by the identifying witness, should be attached to the witness's affidavit as an exhibit. The affidavit should refer to the exhibit and to the fact that it was initialed and dated by the witness. (Do not attach a photospread if you can avoid it; if you feel the need to show a photospread to the identifying witness to avoid later charges of a tainted identification (see Manson v. Brathwaite, 432 U.S. 98 (1977)), you can do so and then attach the selected photo to the affidavit. Similarly, do not have the witness recount in the affidavit that he or she selected the photo of the accused from a photospread. The use of photospreads invites needless argument before the foreign court.)
Updated December 18, 2015