HISTORICAL AND EXPLANATORY NOTES Introduction The growth of international intercourse in recent years has greatly increased the incidence of litigation with international aspects and the necessity of providing for liberal and efficacious procedures to procure and furnish assistance in the performance of procedural acts in one country in connection with litigation in another. See Jones, International Judicial Assistance: Procedural Chaos and a Program for Reform, 62 Yale L. J. 515 (1953); Longley, Serving Process, Subpoenas and Other Documents in Foreign Territory, Proc. A.B.A., Sec. Int'l & Ccmp. L. 34 (1959); Smit, International Aspects of Federal Civil Procedure, 61 Colum. L. Rev. 1031 (1961). Fully aware of this development and of the need for improving existing procedures, Congress, by Act of September 2, 1958, Public Law 85-906, created the Commission on International Rules of Judicial Procedure and charged it with the study of "existing practices of judicial assistance and cooperation between the United States and foreign countries with a view to achieving improvements." The proposed bill is the product of the Commission's persistent pursuit of its statutorily imposed task. It contains amendments to Titles 18, 22, and 28 of the United States Code, developed by the Commission in collaboration with the Columbia University Law School Project on International Procedure, that bring urgently needed improvement to United States procedures for procuring as well as providing assistance in litigation with international aspects. The following comments on each of the sections of the bill indicate the changes made to previously applicable provisions and the reasons that motivated their adoption. SECTION 1. PROPOSED AMENDMENT OF 18 U.S.c. §1621 1 $1621: Perjury generally 2 Whoever, having taken an oath before a competent tribunal, officer, 3 or person, in any case in which a law of the United States author 4 izes an cath to be administered, that he will testify, declare, depose, 5 or certify truly, or that any written testimony, declaration, deposi 6 tion, or certificate by him subscribed, is true, willfully and con 7 trary to such oath states or subscribes any material matter which he 8 does not believe to be true, is guilty of perjury, and shall, ex 9 cept as otherwise expressly provided by law, be fined nɔt more than 10 $2,000 or imprisoned not more than five years, or both. This section 11 is applicable whether the statement or subscription is made within The addition of the last sentence in the amended version constitutes the only change. It is considered necessary to make clear that the section applies even when the perjury is committed outside of the United States. Without the proposed amendment, section 1621 leaves in doubt whether it has extraterritorial application. Its plain meaning seems to support the construction that perjury committed before a person authorized to administer oaths by United States law is punishable irrespective of whether it was committed within or without the United States. However, it could be argued that, notwithstanding its broad language, section 1621 applies only to perjury committed within the territory of the United States. See, cenerally, Smit, International Aspects of Federal Civil Procedure, 61 Colum. L. Rev. 1031, 1055-56 (1961). Whatever the merits of these arguments, there appears to be sufficient reason for eliminating all uncertainty in this regard. It is considered desirable to make unambiguously clear that the section applies irrespective of whether the perjury is committed in the United States or in a foreign country as long as it is committed before a person authorized to administer paths by United States law. Testimony may be taken abroad in many instances before persons who are not cɔnsular officers, but are nevertheless authorized by United States law to administer oaths, including all cases in which depositions are taken by commission or before masters appointed pursuant to Rule 53 of the Federal Rules of Civil Procedure. There is nɔ reason why perjury before such persons should go unpunished, while perjury before United States consular officers should be a criminal offense. The proposed bill eliminates this inequality in treatment and provides a desirable incentive for speaking the truth before all persons authorized to administer oaths by United States law. SECTION 2 PROPOSED AMENDMENT OF 18 U.S.C. $3491 1 $ 3491. Foreign documents 2 Any book, paper, statement, record, account, writing or other 3 document, or any portion thereof, of whatever character and in whatever 4 form, as well as any copy thereof equally with the original, which is 5 not in the United States shall, when duly certified as provided in 6 section 3494 of this title, [and section 1741 of Title 28,] be 7 admissible in evidence in any criminal action or proceeding in any 8 court of the United States if the court shall find, from all the 9 testimony taken with respect to such foreign document pursuant to a 10 ccrmission executed under section 3492 of this title, that such docu11 ment (or the original thereof in case such document is a copy) satis12 fies the requirements of section 1732 of Title 28, unless in the event 13 that the genuineness of such document is denied, any party to such 14 criminal action or proceeding making such denial shall establish to 15 the satisfaction of the court that such document is not genuine. 16 Nothing contained herein shall be deemed to require authentication 17 under the provisions of section 3494 of this title [and section 1741 18 of Title 28] of any such foreign documents which may otherwise be 19 properly authenticated by law. The present language of this section provides that a foreign document is admissible in evidence pursuant to its provisions only if it has been certified as provided in both Section 3494 of Title 18 and Section 1741 of Title 28, United States Code, and if, in addition, the requirements of Section 1732 of Title 28 are met. This double certification requirement is unduly burdenscme, since Section 1741 of Title 28 makes foreign official documents admissible without requiring the satisfaction of any other formalities, when certified in accordance with its provisions. Furthermore, Section 1741 of Title 28 applies only to official foreign documents and the requirement that the provisions of that section be satisfied therefore unduly limits the application of Section 3491 to official documents. To avoid these problems, the references to Section 1741 are eliminated. SECTION 3 - PROPOSED REPEAL OF ACT OF JULY 3, 1930, 46 STAT. 1005, AS AMENDED BY ACT OF JUNE 7, 1933, 48 STAT. 117 (22 U.S.c. 270-2706) 1 [§ 270. International tribunals; administration of oaths; perjury] 2 [Whenever any claim in which the United States or any of its nationals 3 is interested is pending before an international tribunal or ccm- 8 the tribunal or commission; and every person knowingly and willfully 9 swearing or affirming falsely in any such proceedings, whether held 10 within or outside the United States, its territories or possessions, 11 12 shall be deemed guilty of perjury and shall, upon conviction, suffer the punishment provided by the laws of the United States for that of13 fense, when committed in its courts of justice.] 1 [$ 270a. Same; testimony of witnesses; documentary evidence; subpoenas] 2 [Sec. 2. Any such international tribunal or commission shall have 3 power to require by subpoena the attendance and the testimony of 4 witnesses and the production of documentary evidence relating to any 5 matter pending before it. Any member of the tribunal or commission 6 may sign subpoenas.] 1. [§ 270b. Same; contempts] 2 [Sec. 3. Any failure to attend as a witness or to testify as a 3 witness or to produce documentary evidence in an appropriate case may be 4 regarded as a contempt of the authority of the tribunal or commission 5 and shall be punishable in any court of the United States in the 6 same manner as is provided by the laws of the United States for that 7 offense when committed in its courts of justice.] 1 [$ 270c. Same; commissioners to take evidence; procedure] 2 [Sec. 4. To afford such international tribunal or ccrmission needed 3 facilities for the disposition of cases pending therein said tri 4 bunal or commission is authorized and empowered to appoint competent 5 persons, to be named as commissioners, who shall attend the taking 6 of or take evidence in cases that may be assigned to them severally 7 by the tribunal or commission and make report of the findings in 8 the case to the tribunal or commission. Any such commissioner shall 9 proceed under such rules and regulations as may be promulgated by 10 the tribunal or commission and such orders as the tribunal or ccmmission 11 may make in the particular case and may have and perform the general 12 duties that pertain to special masters in suits in equity. He may 13 fix the times for hearings, administer oaths, examine witnesses, 14 and receive evidence. Either party to the proceeding: before the 15 tribunal or commission may appear before the commissioner by 16 attorney, produce evidence, and examine witnesses. Subpoenas 17 for witnesses or for the production of testimony before the ccmmission 18 er may issue out of the tribunal or commission by the clerk thereof 19 and shall be served by a United States marshal in any judicial 20 district in which they are directed. Subpoenas issued by such 21 tribunal or ccrmission requiring the attendance of witnesses in 22 order to be examined before any person commissioned to take testimony 23 therein shall have the same force as if issued from a district 24 court and compliance therewith shall be compelled under such rules 25 and orders as the tribunal or commission shall establish. 26 Any per son. appointed as commissioner may be removed at the pleasure of the 27 tribunal or commission by which he is appointed.] 33 |