I. CRIMINAL PROSECUTIONS

A. Overview of the Law

Foreign nationals arrested on criminal charges may be at a disadvantage in mounting a criminal defense or in coping with confinement because of language, cultural, or other barriers. Consular assistance may help address some of these obstacles. Consular assistance, however, is no substitute for compliance with all constitutional provisions and statutory procedures.

The preamble of the Vienna Convention specifically indicates that the Convention's "purpose . . . is not to benefit individuals but to ensure the efficient performance of functions by consular posts on behalf of their respective States." Vienna Convention, 21 U.S.T., at 79. Some United States courts, however, have intimated that the Vienna Convention provides rights to individuals rather than merely setting out the obligations of signatories. See, e.g., Beard v. Greene, 523 U.S. 371, 118 S. Ct. 1352, 1355, 140 L. Ed. 2d 529 (1998) ("The Vienna Convention--which arguably confers on an individual the right to consular assistance following arrest"); Beard v. Pruett, 134 F.3d 615, 622 (4th Cir.) (Butzner, Judge, concurring), aff'd, 523 U.S. 371, 118 S. Ct. 1352, 140 L. Ed. 2d 529 (1998). Contra Kasi v. Commonwealth, 508 S.E.2d 57, 63-64 (Virginia 1998).

The position that the Vienna Convention provides rights to individuals is questionable. The general rule regarding treaties is that only the foreign sovereign has the right to protest a violation unless the treaty, itself, confers a direct, affirmative, and judicially enforceable right upon others. See, e.g., United States v. Mann, 829 F.2d 849, 852 (9th Cir. 1987). The preamble to the Vienna Convention clearly indicates an intent not to create individual rights. See 21 U.S.T. at 79. The Vienna Convention, moreover, places no obligations upon the notified consular official to perform any services on behalf of the foreign national. Rather, the decision whether to intervene in a particular case and how to intervene in a particular case is left solely to the discretion of the consular official and his or her nation "subject to the laws and regulations of the receiving State." Vienna Convention, Article 36(2), 21 U.S.T., at 101.

States have an obligation under the Supremacy Clause to comply with the provisions of the Vienna Convention. This does not mean, however, that the Vienna Convention creates a constitutional right.

[E]ven if the Vienna Convention on Consular Relations could be said to create individual rights (as opposed to setting out the rights and obligations of signatory nations), it certainly does not create constitutional rights. Although states may have an obligation under the Supremacy Clause to comply with the provisions of the Vienna Convention, the Supremacy Clause does not convert violations of treaty provisions (regardless whether those provisions can be said to create individual rights) into violations of constitutional rights. Just as a state does not violate a constitutional right merely be violating a federal statute, it does not violate a constitutional right merely by violating a treaty. See Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314, 7 L. Ed. 415 (1829) (stating that a treaty must "be regarded in courts of justice as equivalent to an act of the legislature").

Murphy v. Netherland, 116 F.3d 97, 99-100 (4th Cir.), cert. denied, 118 S. Ct. 26 (1997) (emphasis in the original).

Vienna Convention Article 36 deals with obligations to inform foreign nationals who are arrested of the right to consult with their consul. Some individuals contend that compliance with Vienna Convention Article 36 and the various bilateral agreements have been dismal throughout the United States. The available sanctions for non-compliance with the Vienna Convention and the various bilateral agreements have not yet been definitively resolved by the courts, but the United States government has taken the position that a violation of the consular notification requirements does not require restoration of the status quo ante. See Vienna Convention on Consular Relations (Paraguay v. United States of America) 1998 I.C.J., transcript of proceedings in the International Court of Justice (April 7, 1998).

The Eleventh Amendment bars an action against a state in federal court by a foreign nation for failing to notify a foreign national of his or her right to consular access. Beard v. Greene, 523 U.S. 371, 118 S. Ct. 1352, 1354, 140 L. Ed. 2d 529 (1998); Consulate General of Mexico v. Phillips, 17 F. Supp. 2d 1318, 1323-24 (S. D. Fla. 1998); see also The Federal Republic of Germany v. United States, __ U.S. __, 119 S. Ct. 1016, __ L. Ed. 2d ___ (1999). An action in the International Court of Justice brought by Germany seeking to void the convictions of and to obtain reparation for German citizens who were executed following convictions obtained years prior to the German Consulate being notified of their nationals' detention is currently pending. See Case Concerning the Vienna Convention on Consular Relations (Germany v. United States of America), 1999 General List No. 104.

A handful of cases exist in which a defendant has attempted to obtain relief for a violation of the Vienna Convention in the collateral attack context. These cases have been unsuccessful and the United States Supreme Court has instructed that, at a minimum, a petitioner must demonstrate that the violation had an injurious effect on the trial. See, e.g., Beard v. Greene, 118 S. Ct. at 1355; Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir.), cert. denied, 117 S. Ct. 487 (1996). This burden is nigh impossible to meet because the evidence gathering or other assistance that is likely to be provided by a foreign national's nation will be cumulative to the evidence defense counsel had or could have obtained or duplicative of the services provided by defense counsel. Nonetheless, at least one condemned man obtained a last minute stay of execution pending consideration of a petition for certiorari that contained, among other issues, a claim that his right to consular access was denied prior to trial. See Faulder v. Johnson, 119 S. Ct. 614 (December 10, 1998).

Two state courts presented with alleged violations of the Vienna Convention on direct appeal reached diametrically different results. The Virginia Supreme Court recently noted when it denied a defendant's motion to suppress his confession for an alleged violation of the Vienna Convention that "there is no reported authority for the idea that a violation of the treaty creates any legally enforceable individual rights." Kasi v. Commonwealth, 508 S.E.2d 57, 63-64 (Virginia 1998). A Texas Court of Appeals, however, determined that a police detective's failure to advise a Mexican defendant of his right to consular notification when Miranda warnings were tendered would justify the suppression of the defendant's statements under a Texas statute that extends the exclusionary rule to violations of statutes in addition to constitutional violations. Cardona v. State, 973 S.W.2d 412, 417-18 (Tex. App. 1998) (affirming conviction under a non-constitutional harmless error analysis).

The federal courts are experiencing an explosion of litigation regarding the Vienna Convention. The first detailed federal court direct appeal decision was issued March 25, 1999. The case, United States v. Lombera-Camorlinga, 170 F.3d 270 (9th Cir. 1999), involved a Mexican national who was arrested at the California Port of Entry when customs inspectors searched his vehicle and found 39.3 kilograms of marijuana hidden under the floorboard.

The Ninth Circuit determined that Article 36 of the Vienna Convention creates a right personal to the foreign national and that the foreign national had standing to complain about the Custom Officer's failure to advise him of his right to consular notification when Miranda warnings were tendered. Lombera-Camorlinga, 170 F.3d at 1242-43. The Ninth Circuit determined that the proper remedy for the violation was a remand to the trial court for the court to consider whether the defendant was prejudiced by the failure to comply with the Vienna Convention. Id. at 1243-44.

The United States District Courts which have considered motions to dismiss charges or suppress for violations of the Vienna Convention take one of two positions. The first group rejects the claim on the grounds that the treaty does not create personal rights. See, e.g., Republic of Paraguay v. Allen, 949 F. Supp. 1269, 1274 (E.D. Va.1996), aff'd, 134 F.3d 622 (4th Cir.), cert. denied, 523 U.S. 371 (1998) ("a private party may not seek redress for treaty violations" where treaty is "self-executing" and Vienna Convention is "self-executing"). The second group holds that while an individual defendant may seek relief for a violation of the Vienna Convention if he has been prejudiced, suppression of evidence is not the proper remedy. See, e.g., United States v. Torres-Del Muro, ___ F. Supp.2d ___, 1999 WL 515999 (C.D. Ill. July 20, 1999); United States v. Alvarado-Torres, 45 F. Supp.2d 986, 994 (S.D. Cal. 1999); United States v. Tapia-Mendoza, 41 F. Supp. 2d 1250, 1255 (D. Utah 1999); United States v. Superville, 40 F. Supp. 2d 672, 675-77 (D.C. Virgin Islands 1999) (addressing standing and prejudice issues, but not suppression issue because court determined that the notice mandated by the treaty had been properly given); United States v. Chaparro-Alcantara, 37 F. Supp. 2d 1122 (C.D. Ill. 1999); United States v. Esparza-Ponce, 7 F.Supp.2d 1084, 1097 n. 9 (S.D.Cal.1998).

The cases which hold that a defendant is entitled to some unspecified relief if s/he can establish prejudice from the violation of the Vienna Convention formulate the prejudice test in slightly different ways. The Ninth Circuit has placed the burden of establishing prejudice upon the defendant:

At the present time, we believe the most reasonable approach is to place the burden on the defendant to show he was prejudiced as a result of the violation. One commentator has concluded that "a foreign national is inherently prejudiced when detained or in custody in a foreign criminal justice system. A consul's assistance can place him on par with a non-foreigner." Mark J. Kadish, Article 36 of the Vienna Convention on Consular Relations: A Search for the Right to Consul, 18 Mich. J. Int'l L. 565, 606 (1997). We believe, however, that unless after time is proves ineffective in inducing compliance with the Vienna Convention, the determination of prejudice is a question of fact dependent on the circumstances of the individual case.

United States v. Lombera-Camorlinga, 170 F.3d at 1244, n. 3. If the defendant meets his burden of showing prejudice, the Ninth Circuit indicates that it is up to the government to rebut the showing of prejudice.

Other courts have refined the prejudice test, directing courts to consider the following factors: (1) whether defendant knew of his right to consult his consul; (2) whether defendant would have availed himself of that right had he known of it; and (3) whether there was a likelihood that contact with the consul would have resulted in assistance to him. See, e.g., United States v. Alvarado-Torres, 45 F. Supp.2d at 990.

The courts that have considered the question of prejudice, have uniformly found that the defendant did not meet his burden. The defendant's inability to demonstrate prejudice stems in part from the fact that nothing in the Vienna Convention or the case law requires law enforcement officials to cease all interrogation until the detainee speaks to his consular official. This means that law enforcement officers may acquire the detainee's waiver of Fifth Amendment rights even after notifying the detainee of his right to speak to with the consulate. United States v. Chaparro-Alcantara, 37 F. Supp. 2d at 1126. Since it is virtually impossible to know, even if the detainee's request is immediately forwarded to the consulate, at what point in time detainees will actually succeed in speaking with a Consular Officer, most courts have ruled that a detainee's bare assertion that he would have stopped speaking with law enforcement immediately after being advised that he had the right to speak to his nation's consulate is insufficient to establish prejudice. See, e.g., United States v. Chaparro-Alcantara, 37 F. Supp. 2d at 1126-27.

Similarly, courts have found that a consulate's representations that it would have advised the detainee of his rights to counsel and to remain silent with a recommendation to answer no questions is insufficient to establish prejudice because this information is already conveyed to the detainee by Miranda warnings. See, e.g., United States v. Alvarado-Torres, 45 F. Supp.2d at 990. In addition, pre-existing case law indicates that a defendant cannot establish prejudice from an officer's failure to notify another of the defendant's arrest if the defendant understood, and voluntarily waived, his Miranda rights. United States v. Alvarado-Torres, 45 F. Supp.2d at 991, citing Harris v. Wright, 93 F.3d 581, 586 (9th Cir.1996) (court refused to suppress defendant's statements, which were made after a knowing and voluntary Miranda waiver, because of the failure to notify the defendant's parents of his arrest).

Whether Washington state will determine that the Vienna Convention creates legally enforceable individual rights such that non-compliance with the terms of the Vienna Convention would support the suppression of evidence is undecided. While the Washington Court of Appeals is willing to consider suppression of evidence for a non-constitutional violation of law, the Washington Supreme Court in State v. Bonds, 98 Wn.2d 1, 10-13, 653 P.2d 1024 (1982), declined to mechanically apply the exclusionary rule to suppress evidence obtained in violation of Oregon law but in conformity with the constitution and the laws of Washington.

Regardless of whether judicial sanctions exist for non-compliance with the Vienna Convention, significant policy reasons exist for striving for full compliance with Vienna Convention Article 36:

The protections afforded by the Vienna Convention go far beyond [a single] case. United States citizens are scattered about the world--as missionaries, Peace Corps volunteers, doctors, teachers and students, as travelers for business and for pleasure. Their freedom and safety are seriously endangered if state officials fail to honor the Vienna Convention and other nations follow their example. Public officials should bear in mind that "international law is founded upon mutuality and reciprocity . . . ." Hilton v. Guyot, 159 U.S. 113, 228, 16 S. Ct. 139, 168, 40 L. Ed. 95 (1895).

The State Department has advised the states, including Virginia, of their obligations to inform foreign nationals of their rights under the Vienna Convention. It has advised states to facilitate consular access to foreign detainees. Prosecutors and defense attorneys alike should be aware of the rights conferred by the treaty and their responsibilities under it. The importance of the Vienna Convention cannot be overstated. It should be honored by all nations that have signed the treaty and all states of this nation.

Beard v. Pruett, 134 F.3d 615, 622 (4th Cir.) (Butzner, Judge, concurring), aff'd, 523 U.S. 371, 118 S. Ct. 1352, 140 L. Ed. 2d 529 (1998).

B. Implementation

Honoring our nations' obligations under the Vienna Convention is not particularly onerous. The United States Department of State has prepared an excellent "how-to" booklet that includes suggested statements, translations of the suggested statements into many languages, a suggested fax form, and an extensive directory of consuls. See Office of the Legal Adviser, United States Department of State, Consular Notification and Access: Instructions for Federal, State, and Local Enforcement and Other Officials Regarding Foreign Nationals in the United States and the Rights of Consular Officials to Assist Them (January 1998) ("State Department Brochure"). This brochure is available on the Internet at:

http://www.state.gov/www/global/legal_affairs/ca_notification/ca_prelim.html

The following general steps must be taken when a foreign national is arrested or detained:

1. Determine the foreign national's country. In the absence of other information, assume this is the country on whose passport or other travel document the foreign national travels.

2. If the foreign national's country is not on the mandatory notification list:

Offer, without delay, to notify the foreign national's consular officials of the

arrest/detention. The language suggested by the State Department for the notice is as follows:

As a non-U.S. citizen who is being arrested or detained, you are entitled to have us notify your country's consular representatives here in the United States. A consular official from your country may be able to help you obtain legal counsel, and may contact your family and visit you in detention, among other things. If you want us to notify your country's consular officials, you can request this notification now, or at any time in the future. After your consular officials are notified, they may call or visit you. Do you want us to notify your country's consular officials?

State Department Brochure at 7.

If the foreign national asks that consular notification be given, notify the nearest consular officials of the foreign national's country without delay. Phone and fax numbers for foreign embassies and consulates in the United States can be found in section 6 of the State Department Brochure and on the State Department's web page: http://www.state.gov. A suggested fax sheet for making the notification appears in appendix A.

3. If the foreign national's country is on the list of mandatory notification countries:

Notify that country's nearest consular officials, without delay, of the arrest/detention. Phone and fax numbers for foreign embassies and consulates in the United States can be found in section 6 of the State Department Brochure and on the State Department's web page: http://www.state.gov. A suggested fax sheet for making the notification appears in appendix A.

Tell the foreign national that you are making this notification. The language suggested by the State Department for the notice is as follows:

Because of your nationality, we are required to notify your country's consular representatives here in the United States that you have been arrested or detained. After your consular officials are notified, they may call or visit you. You are not required to accept their assistance, but they may be able to help you obtain legal counsel and may contact your family and visit you in detention, among other things. We will be notifying your country's consular officials as soon as possible.

State Department Brochure, at 7.

4. A written record should be made of the date and time that the foreign national was informed of the option of consular notification, whether the foreign national requested that consular officials be notified, the date and time notification was sent to the consular officer of the detention or arrest, any confirmation of receipt of notification received from the consular officer, and a record of any actual contact between the foreign national and a consular officer. State Department Brochure, at 14.

5. Upon a detained foreign national's first appearance in court, the presiding judicial officer should inquire of the foreign national whether the foreign national has been provided with consular notification as required by the Vienna Convention and/or any bilateral agreement providing for mandatory notification. State Department Brochure, at 18-19. If the required notice has not yet been made, the court should ask the prosecuting attorney to ensure that the notification is promptly made and that proof of notification be filed with the court.

6. When a detained foreign national is transferred following conviction, judgment of acquittal by reason of insanity, or a finding of incompetency from a county facility to a state facility, the state facility should repeat steps one through four of this section.

C. Special Issues

The following is a list of questions that are likely to occur to the users of this manual. Few of these questions have been addressed yet by the courts. The answers, therefore, occasionally represent the author's best guess in light of the intended purpose of consular notification and the Department of State's guidance. The Department of State has considerable discretion in how the consular notification requirements are implemented. The overarching goal is to treat a foreign national as we would want an American treated abroad.

1. If law enforcement officials from the foreign national's country are aware of the detention and are helping to investigate the crime in which the foreign national was allegedly involved, is it still necessary to go through the process of consular notification?

Yes. Consular authorities have different functions than law enforcement officials, and the Vienna Convention expressly calls for notification to consular officials. State Department Brochure, at 20.

2. If an arrested foreign national asks to have his or her consul notified of the detention during an interrogation what should I do?

Arrested foreign nationals who are interrogated at the police station prior to booking should generally be advised of their right to consular access at the same time they are advised of their Miranda warnings. If possible, a fax should be sent to the closest consulate or embassy immediately if the foreign national requests that notification be made. The foreign national should be informed once notification is sent. There is no legal requirement that interrogation be suspended following the sending of the fax and/or the placing of a phone call, but as a matter of courtesy and to avoid misunderstandings it may be appropriate to suspend interrogation if the foreign national indicates that s/he desires to cease answering questions until s/he hears from a consular official. If interrogation is suspended at the request of a foreign national pending contact with a consular official, the appropriate consular official should be contacted and his or her intentions with respect to visiting or calling the detainee should be ascertained, if possible, and relayed to the foreign national. The foreign national may then be asked whether he/she is prepared for interrogation to resume. If the consular official cannot be reached, further interrogation should only occur if the foreign national initiates contact.

3. Does Article 36 apply to foreign nationals who are detained at a hospital pending their first appearance in court?

Yes. If a suspect's injuries require prolonged medical treatment, i.e. more than 24 hours stay at the hospital, and the suspect's ability to leave the hospital is restricted by law enforcement, consular notification must occur. State Department Brochure, at 19.

4. Does Article 36 apply to juvenile foreign nationals who are detained for a criminal law violation?

Yes. Nothing in the Vienna Convention limits its application to adults.

5. What services may a consular official provide to a detained foreign national and what steps must a detention facility take to facilitate contact between a detained foreign national and a consular officer?

The services offered by a consular officer in a particular case will depend upon the distance between the consulate and the place of detention, the level of representation in the United States, and the available resources. The decision regarding what level of services to provide rests with the foreign national detainee's country, not with the foreign national detainee. State Department Brochure, at 22. The following guidelines are applicable:

(a) A consular officer may not act as legal counsel for a detained foreign national. United States v. Alvarado-Torres, 45 F. Supp.2d 986, 993 (S.D. Cal. 1999); State Department Brochure, at 22. See also; RCW 2.48.180 (making it a crime for an individual who is not admitted to practice law in Washington to represent someone in court). A detained foreign national who is indigent and eligible for court-appointed counsel must be provided with a lawyer in accordance with a jurisdiction's local practice.

(b) A consular officer may address the court on issues of release to the same extent that a detainee's family members or friend may be heard.

(c) A consular officer is entitled to visit with and to communicate with their detained nationals. While the visits may be subject to the normal visitation rules applicable to a particular detention facility, the visits, like those of an attorney, should normally be permitted to occur in private. Application of a facilities' legal mail, attorney phone call rules, and attorney visitation rules to consular officers is probably the safest course to pursue. State Department Brochure, at 22-23.

II. CIVIL DETENTIONS

Washington law includes a number of statutes that provide for the civil detention of an individual. Some of these detentions, such as a detention for treatment pursuant to the sexual violent predator statute, Chapter 71.09 RCW, or for family reconciliation services pursuant to Chapter 13.32A RCW, do not involve individuals who are incompetent. Other detentions, such as detention for treatment for a serious mental illness pursuant to Chapter 71.05 RCW, involve individuals who may be incompetent. Different procedures apply to each type of civil detention.

If a foreign national who appears to possess full capacity is detained pursuant to a civil statute under a theory of parens patriæ then the procedure discussed in section I.B. of this manual should be followed.

If a foreign national who appears to lack full capacity is being detained pursuant to a civil statute under a theory of parens patriæ Vienna Convention Article 37(b) would appear to govern our responsibilities. This provision provides that:

If the relevant information is available to the competent authorities of the receiving State, such authorities shall have the duty: . . . .

(b) to inform the competent consular post without delay of any case where the appointment of a guardian or trustee appears to be in the interests of a minor or other person lacking full capacity who is a national of the sending State. The giving of this information shall, however, be without prejudice to the operation of the laws and regulations of the receiving State concerning such appointments;

Vienna Convention, Article 37(b), 21 U.S.T., at 102.

The suggested procedure for implementing Article 37 in the case of an involuntary detention of a foreign national who appears to lack full capacity is as follows:

1. Determine the foreign national's country. In the absence of other information, assume this is the country on whose passport or other travel document the foreign national travels.

2. The designated county mental health professional should notify the country's nearest consular officials, without delay, of the detention for evaluation and treatment of a person who appears to lack full capacity. Phone and fax numbers for foreign embassies and consulates in the United States can be found in section 6 of the State