C. ACQUISITION OF TESTIMONY IN A FOREIGN COUNTRY

The memorandum in this section discusses the ability of a congressional committee to seek letters rogatory for the purpose of taking testimony of a foreign citizen.

The select committee filed numerous applications for orders requesting international judicial assistance in various countries. The committee did file for letters rogatory to take the testimony of several Canadian citizens, but the Canadian Government declined to honor the letters rogatory because it did not believe the applicable statutes empowered a congressional committee to seek them. The Canadian Government arranged informal interviews with most of the Canadian citizens whose testimony was sought by the committee.

(122)

1. Memorandum on Use of Letters Rogatory by a Congressional Committee

Letters rogatory are requests by one court of another

that a witness be examined upon interrogatories forwarded with the request. Such interrogatories generally consist of a series of written questions to be propounded to a witness whose answers thereto are taken under oath and reduced to writing for forwarding back to the requester. In an international context, such letters rogatory are said to be "the medium whereby one country, speaking through one of its courts, requests another country, acting through its own courts and by methods of court procedure peculiar thereto and entirely within the latter's control, to assist the administration of justice in the former country." Tiedemann v. The Signe, 37 F. Supp. 819, 820 (E.D. La. 1941). Or, put another way, such letters are "a formal communication in writing, sent by a court in which an action is pending to a court or judge of a foreign country, requesting that the testimony of a witness resident within the jurisdiction of the latter court may be there formally taken under its direction and transmitted to the first court for use in the pending action." Black's Law Dictionary, Fourth Edition, 1951.

The receiving and transmitting agency of the United

States Government in such matters is officially the Department of

State. Section 1781 of Title 28 of the United States Code confers

that power:

(a) The Department of State has power, directly, or through suitable channels-

(1) To receive a letter rogatory issued, or request made, by a foreign or international tribunal, to transmit it to the tribunal, officer, or agency in the United States to whom it is addressed, and to receive and return it after execution; and

(2) To receive a letter rogatory issued, or request made, by a tribunal in the United States, to transmit it to the foreign or international tribunal, officer, or agency to whom it is addressed, and to receive and return it after execution.

(b) This section does not preclude-

(1) the transmittal of a letter rogatory or request directly from a foreign or international tribunal, officer, or agency in the United States to whom it is addressed and its return in the same manner; or

(2) the transmittal of a letter rogatory or request directly from a tribunal, officer, or agency to whom it is addressed and its return in the same manner.

(October 3, 1964, Pub. L. 88-619, §8 (a), 78 Stat. 996.)

The power of the United States District Courts to comply with such requests is set out at section 1782 of the same Title:

(a) The district court of the district in which a
person resides or is found may order him to give
his testimony or statement or to produce a docu-
ment or other thing for use in a proceeding in
a foreign or international tribunal. The order
may be made pursuant to a letter rogatory issued,
or request made, by a foreign or international

tribunal or upon the application of any interested
person and may direct that the testimony or state-
ment be given, or the document or other thing be
produced, before a person appointed by the court.
By virtue of his appointment, the person appointed
has power to administer any necessary oath and take
the testimony or statement. The order may pre-
scribe the practice and procedure, which may be in
whole or in part the practice and procedure of the
foreign country or the international tribunal, for
taking the testimony or statement or producing the
document or other thing. To the extent that the
order does not prescribe otherwise the testimony
or statement shall be taken, and the document or
other thing produced, in accordance with the Fed-
eral Rules of Civil Procedure.

A person may not be compelled to give his testimony or statemet or to produce a document or other thing in violation of any legally applicable privilege.

(b) This chapter does not preclude a person within the United States from voluntarily giving his testimony or statement, or producing a document or other thing, for use in a proceeding in a foreign or international tribunal before any person and in any manner acceptable to him. (October 3, 1964, Pub. L. 88-619, 59(a), 78 Stat. 997)

Traditionally, the inherent power of a court to issue

a letter rogatory was used "only in aid of a cause or proceeding pending in the court which issues the letters," and the power to issue or to honor such letters is viewed as a matter within the discretion of the courts. (23 Am. Jur. 2d, "Depositions and Discovery", §§24, 25) A treaty designed to facilitate the taking of evidence abroad (Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, 23 U.S.T. 2555, entered into force for

42-743 - 79 - 9

the United States on October 7, 1972) would not apply to a letter rogatory for securing evidence for a congressional investigation. Article I of that treaty provides that letters of request "shall not be used to obtain evidence which is not intended for use in judicial proceedings, commenced or contemplated." Furthermore, Denmark, France,

very few countries are parties to the treaty Norway, Portugal and Sweden. Canada is not a party to the treaty. We have been unable to find a federal statutory provision

conferring jurisdiction upon the federal courts to issue a letter rogatory to secure evidence abroad in aid of a congressional investigation. Perhaps because such letters have traditionally been associated with judicial proceedings, we have found no reported judicial decisions involving use of such letters by a legislative committee. The possible use of a letter rogatory in this context was addressed in dicta contained in In re Pacific Railway Commission (32 F. 241 at 256, 257 (1887)) wherein it was said:

The proceedings to obtain testimony upon letters rogatory to be used
in the courts of foreign countries is not, as suggested by counsel, an ex-
'ception to this doctrine. There are certain powers inhereL. in all courts.
The power to preserve order in their proceedings, and to punish for con-
tempt of their authority, are instances of this kind. And by jurists and
text writers the power of the courts of record of one country, as a matter
of comity, to furnish assistance, so far as is consistent with their own
jurisdiction, to the courts of another country, by taking the testimony
of witnesses to be used in the foreign country, or by ordering it to be
taken before a magistrate or commissioner, has also been classed ainong
their inherent powers. "For by the law of nations," says Greenleaf,
"courts of justice of different countries are bound mutually to aid and
assist each other, for the furtherance of justice; and hence, when the tes-
timony of a foreign witness is necessary, the court before which the ac-
tion is pending may send to the court within whose jurisdiction the wit-
ness resides a writ, either patent or close, usually ternied a letter roga-
tory, or a commission sub mutuæ vicissitudinis obtentu ac in juris subsidium, .