Evidence Gathering Abroad: Using MLA for Documents, Witness Statements & Asset Tracing

When critical evidence lies beyond national borders, domestic subpoenas and court orders lose their power. This is where Mutual Legal Assistance (MLA) transforms from a legal concept into an indispensable practical tool. For prosecutors and defense attorneys alike, mastering MLA-based evidence gathering abroad is essential for building winning cases in an increasingly globalized world.

This 2025 guide focuses on the core practical applications of MLA. We will provide a detailed roadmap for obtaining the three most common types of international evidence: documents, witness statements, and asset tracing. You will learn the specific strategies, required documentation, and potential pitfalls for each evidence type, moving from theory to actionable practice.

📄 1. Obtaining Documents & Records via MLA

Securing official and financial documents from foreign jurisdictions is one of the most common uses of MLA. The process demands precision to avoid rejection.

Key Types of Documents Obtainable:

Bank and Financial Records: Account statements, transaction histories, wire transfer details, and beneficial ownership information.
Corporate Records: Company registration documents, articles of incorporation, shareholder registries, and board meeting minutes.
Government Records: Birth certificates, marriage licenses, property deeds, tax records, and immigration files.
Communication Records: Historical metadata from telecommunications providers (requires a high threshold of legal justification).

Drafting the Request for Documents:

Be Hyper-Specific: Avoid a “fishing expedition.” Clearly identify the record-holding entity (e.g., “Credit Suisse, AG, Paradeplatz 8, Zurich”), the exact account numbers, and the precise time frame.
Explain the Relevance: Articulate clearly why these specific documents are crucial to your investigation and how they connect to the alleged offense.
Certify and Translate: Ensure all supporting documents (like the underlying warrant) are certified and accompanied by a certified translation into the official language of the requested state.

Case Example: A U.S. investigation into corruption requires the bank records of a suspect in Switzerland. The Letter of Request (LOR) must specify the bank name, branch address, account number, and the exact period of the transactions in question. A request for “all bank records” would be rejected.

👥 2. Securing Witness Testimony & Statements

Gathering testimony from witnesses located overseas presents unique logistical and legal challenges that MLA can overcome.

Methods for Obtaining Testimony:

Commissioned Examinations: The requested state appoints a judicial officer (e.g., a judge or magistrate) to take the witness’s testimony under oath, following the requesting state’s provided questions.
Video Conferencing: Increasingly common. The witness testifies from their home country via a secure video link to a courtroom in the requesting country. This often requires a specific legal framework, like the Council of Europe’s Second Additional Protocol.
Voluntary Agreements: While not strictly MLA, witnesses can sometimes provide voluntary sworn affidavits or agree to be interviewed by foreign officials visiting their country, if permitted by local law.

Drafting the Request for Testimony:

Provide Witness Details: Full name, date of birth, current address, and passport number if possible.
List Specific Questions: Provide a detailed list of questions or a clear summary of the topics to be covered to ensure the testimony meets your evidentiary needs.
Specify the Preferred Method: Indicate if you seek a commissioned examination or video conference testimony. Be prepared for the requested state to decide based on its own laws.
Address Safety Concerns: If the witness is vulnerable, request appropriate protections during the testimony process.

💰 3. Tracing, Freezing, and Confiscating Assets

Asset tracing and recovery is one of the most complex but critical applications of MLA, often involving multiple countries and legal systems.

The Three-Step MLA Process for Assets:

Tracing: Identifying the proceeds of crime and their path across borders. This involves using MLA to obtain bank records, corporate registries, and real estate records to map the money trail.
Freezing: Preventing the further movement or dissipation of the identified assets. This requires an MLA request that includes a domestic freezing order from the requesting state. The requested state will then seek a mirror order in its jurisdiction.
Confiscation/Forfeiture: Permanently depriving the criminals of their assets. This is a lengthy judicial process in the requested state, often requiring the requesting state to obtain a final confiscation order domestically first.

Drafting the Request for Asset Action:

Provide the Legal Basis: Include the domestic warrant or court order that authorizes the freezing or confiscation.
Clearly Identify the Assets: Provide specific details: bank account numbers, property addresses, company registration numbers, and VINs for vehicles.
Demonstrate the Link to Crime: Include a clear, concise narrative explaining how the assets are proceeds of the specific criminal activity under investigation. This is essential for satisfying dual criminality requirements.
Request Management: For frozen assets, specify if you request the appointment of a manager to preserve their value.

⚠️ Overcoming Common Challenges in Cross-Border Evidence Gathering

Dual Criminality: This is a frequent hurdle for asset tracing and certain financial crimes. Be prepared to explain in your LOR how the activity violates the laws of the requested state.
Bank Secrecy Laws: Countries like Switzerland have relaxed their strict bank secrecy laws for MLA purposes, but requests must still be meticulously drafted and justified.
Data Privacy Regulations: The EU’s General Data Protection Regulation (GDPR) can complicate access to personal data. Your request must demonstrate that the need for evidence outweighs privacy concerns under the law.
Third-Party Rights: Asset freezing requests often trigger appeals from affected third parties (like family members or shell companies), which can significantly delay the process.

📋 Best Practices for a Successful MLA Evidence Request

Early Engagement with Central Authority: Consult your Central Authority (e.g., U.S. DOJ OIA) in the drafting stage. They can provide country-specific guidance.
Use the Model Forms: Many international organizations, like the UNODC, provide model forms for MLA requests that align with treaty requirements.
Prove Dual Criminality Proactively: Include a brief legal memorandum in your request package that explains how the facts of your case constitute an offense under the requested state’s criminal code.
Consider Alternatives: For some digital evidence, frameworks like the U.S. CLOUD Act can provide a faster path than traditional MLA for data held by U.S.-based tech companies.

❓ Evidence Gathering Abroad FAQs

Q1: Can MLA be used for real-time surveillance or intercepts?
Yes, but this is one of the most intrusive measures and has a very high threshold. Requests must demonstrate strict necessity and proportionality and are often governed by specific articles in MLATs. Many countries refuse such requests outright.

Q2: How do I handle evidence that requires ongoing maintenance, like a frozen asset?
Your MLA request should specify the need for asset management. The requested state may appoint a receiver or manager, and you must budget for the associated costs, which may be billed back to your agency.

Q3: Is evidence obtained via MLA automatically admissible in court?
Not automatically. The evidence must still comply with your domestic rules of evidence. The foreign certification accompanying the evidence is crucial for authenticating it and overcoming hearsay objections. Work with your prosecutor early on admissibility strategies.

Q4: Can the defense use MLA to gather exculpatory evidence?
Absolutely. Defense counsel can petition the court or relevant government authority to make an MLA request on behalf of the defendant to secure evidence that supports the defense case. The standard of proof and process can be more stringent.

Q5: What happens if a witness lies during an MLA-commissioned examination?
The witness would be subject to perjury laws and penalties in the country where the testimony is given, not the requesting country.

🧭 Conclusion: Building a Bulletproof International Case

Evidence gathering abroad through MLA is a meticulous and often slow process, but it is the only legally sound method for obtaining admissible evidence from foreign jurisdictions. The key to success lies in unparalleled specificity, an understanding of foreign legal systems, and patience.

By tailoring your Letter of Request to the specific type of evidence you need—documents, testimony, or assets—you significantly increase your chances of a successful outcome. This diligent approach ensures that justice is not confined by national borders.

For a deeper dive into the initial steps, read our guide on How to Request Mutual Legal Assistance: A Step-by-Step Guide for Lawyers. To understand the time investment required, see our analysis of How Long Does Mutual Legal Assistance Take? Realistic Timelines in 2025.