18 U.S.C. § 3507 — Special master at foreign deposition

Page 778 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 3505 menced, occurring after the date of its enactment [Oct. 15, 1970]. Paragraph (3) of subsection (a) of section 3504, chapter 223, title 18, United States Code, shall not apply to any proceeding in which all information to be relied upon to establish inadmissibility was possessed by the party making such claim and adduced in such proceeding prior to such enactment.’’ § 3505. Foreign records of regularly conducted activity (a)(1) In a criminal proceeding in a court of the United States, a foreign record of regularly conducted activity, or a copy of such record, shall not be excluded as evidence by the hearsay rule if a foreign certification attests that— (A) such record was made, at or near the time of the occurrence of the matters set forth, by (or from information transmitted by) a person with knowledge of those matters; (B) such record was kept in the course of a regularly conducted business activity; (C) the business activity made such a record as a regular practice; and (D) if such record is not the original, such record is a duplicate of the original; unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. (2) A foreign certification under this section shall authenticate such record or duplicate. (b) At the arraignment or as soon after the ar- raignment as practicable, a party intending to offer in evidence under this section a foreign record of regularly conducted activity shall pro- vide written notice of that intention to each other party. A motion opposing admission in evidence of such record shall be made by the op- posing party and determined by the court before trial. Failure by a party to file such motion be- fore trial shall constitute a waiver of objection to such record or duplicate, but the court for cause shown may grant relief from the waiver. (c) As used in this section, the term— (1) ‘‘foreign record of regularly conducted activity’’ means a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diag- noses, maintained in a foreign country; (2) ‘‘foreign certification’’ means a written declaration made and signed in a foreign coun- try by the custodian of a foreign record of reg- ularly conducted activity or another qualified person that, if falsely made, would subject the maker to criminal penalty under the laws of that country; and (3) ‘‘business’’ includes business, institution, association, profession, occupation, and call- ing of every kind, whether or not conducted for profit. (Added Pub. L. 98–473, title II, § 1217(a), Oct. 12, 1984, 98 Stat. 2165.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Pub. L. 98–473, title II, § 1220, Oct. 12, 1984, 98 Stat. 2167, provided that: ‘‘This part [part K (§§ 1217–1220) of chapter XII of title II of Pub. L. 98–473, enacting this section and sections 3292, 3506, and 3507 of this title and amending section 3161 of this title] and the amend- ments made by this part shall take effect thirty days after the date of the enactment of this Act [Oct. 12, 1984].’’ § 3506. Service of papers filed in opposition to of- ficial request by United States to foreign gov- ernment for criminal evidence (a) Except as provided in subsection (b) of this section, any national or resident of the United States who submits, or causes to be submitted, a pleading or other document to a court or other authority in a foreign country in opposition to an official request for evidence of an offense shall serve such pleading or other document on the Attorney General at the time such pleading or other document is submitted. (b) Any person who is a party to a criminal proceeding in a court of the United States who submits, or causes to be submitted, a pleading or other document to a court or other authority in a foreign country in opposition to an official request for evidence of an offense that is a sub- ject of such proceeding shall serve such pleading or other document on the appropriate attorney for the Government, pursuant to the Federal Rules of Criminal Procedure, at the time such pleading or other document is submitted. (c) As used in this section, the term ‘‘official request’’ means a letter rogatory, a request under a treaty or convention, or any other re- quest for evidence made by a court of the United States or an authority of the United States hav- ing criminal law enforcement responsibility, to a court or other authority of a foreign country. (Added Pub. L. 98–473, title II, § 1217(a), Oct. 12, 1984, 98 Stat. 2166.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 30 days after Oct. 12, 1984, see sec- tion 1220 of Pub. L. 98–473, set out as a note under sec- tion 3505 of this title. § 3507. Special master at foreign deposition Upon application of a party to a criminal case, a United States district court before which the case is pending may, to the extent permitted by a foreign country, appoint a special master to carry out at a deposition taken in that country such duties as the court may direct, including presiding at the deposition or serving as an advi- sor on questions of United States law. Notwith- standing any other provision of law, a special master appointed under this section shall not decide questions of privilege under foreign law. The refusal of a court to appoint a special mas- ter under this section, or of the foreign country to permit a special master appointed under this section to carry out a duty at a deposition in that country, shall not affect the admissibility in evidence of a deposition taken under the pro- visions of the Federal Rules of Criminal Proce- dure. (Added Pub. L. 98–473, title II, § 1217(a), Oct. 12, 1984, 98 Stat. 2166.) Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective 30 days after Oct. 12, 1984, see sec- tion 1220 of Pub. L. 98–473, set out as a note under sec- tion 3505 of this title. Page 779 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 3509 § 3508. Custody and return of foreign witnesses (a) When the testimony of a person who is serving a sentence, is in pretrial detention, or is otherwise being held in custody, in a foreign country, is needed in a State or Federal crimi- nal proceeding, the Attorney General shall, when he deems it appropriate in the exercise of his discretion, have the authority to request the temporary transfer of that person to the United States for the purposes of giving such testi- mony, to transport such person to the United States in custody, to maintain the custody of such person while he is in the United States, and to return such person to the foreign country. (b) Where the transfer to the United States of a person in custody for the purposes of giving testimony is provided for by treaty or conven- tion, by this section, or both, that person shall be returned to the foreign country from which he is transferred. In no event shall the return of such person require any request for extradition or extradition proceedings, or proceedings under the immigration laws. (c) Where there is a treaty or convention be- tween the United States and the foreign country in which the witness is being held in custody which provides for the transfer, custody and re- turn of such witnesses, the terms and conditions of that treaty shall apply. Where there is no such treaty or convention, the Attorney General may exercise the authority described in para- graph (a) if both the foreign country and the witness give their consent. (Added Pub. L. 100–690, title VI, § 6484(a), Nov. 18, 1988, 102 Stat. 4384.) § 3509. Child victims’ and child witnesses’ rights (a) DEFINITIONS.—For purposes of this sec- tion— (1) the term ‘‘adult attendant’’ means an adult described in subsection (i) who accom- panies a child throughout the judicial process for the purpose of providing emotional sup- port; (2) the term ‘‘child’’ means a person who is under the age of 18, who is or is alleged to be— (A) a victim of a crime of physical abuse, sexual abuse, or exploitation; or (B) a witness to a crime committed against another person; (3) the term ‘‘child abuse’’ means the phys- ical or mental injury, sexual abuse or exploi- tation, or negligent treatment of a child; (4) the term ‘‘physical injury’’ includes lac- erations, fractured bones, burns, internal inju- ries, severe bruising or serious bodily harm; (5) the term ‘‘mental injury’’ means harm to a child’s psychological or intellectual func- tioning which may be exhibited by severe anx- iety, depression, withdrawal or outward ag- gressive behavior, or a combination of those behaviors, which may be demonstrated by a change in behavior, emotional response, or cognition; (6) the term ‘‘exploitation’’ means child por- nography or child prostitution; (7) the term ‘‘multidisciplinary child abuse team’’ means a professional unit composed of representatives from health, social service, law enforcement, and legal service agencies to coordinate the assistance needed to handle cases of child abuse; (8) the term ‘‘sexual abuse’’ includes the em- ployment, use, persuasion, inducement, en- ticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploi- tation of children, or incest with children; (9) the term ‘‘sexually explicit conduct’’ means actual or simulated— (A) sexual intercourse, including sexual contact in the manner of genital-genital, oral-genital, anal-genital, or oral-anal con- tact, whether between persons of the same or of opposite sex; sexual contact means the intentional touching, either directly or through clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify sexual desire of any person; (B) bestiality; (C) masturbation; (D) lascivious exhibition of the genitals or pubic area of a person or animal; or (E) sadistic or masochistic abuse; (10) the term ‘‘sex crime’’ means an act of sexual abuse that is a criminal act; (11) the term ‘‘negligent treatment’’ means the failure to provide, for reasons other than poverty, adequate food, clothing, shelter, or medical care so as to seriously endanger the physical health of the child; and (12) the term ‘‘child abuse’’ does not include discipline administered by a parent or legal guardian to his or her child provided it is rea- sonable in manner and moderate in degree and otherwise does not constitute cruelty. (b) ALTERNATIVES TO LIVE IN-COURT TESTI- MONY.— (1) CHILD’S LIVE TESTIMONY BY 2-WAY CLOSED CIRCUIT TELEVISION.— (A) In a proceeding involving an alleged of- fense against a child, the attorney for the Government, the child’s attorney, or a guardian ad litem appointed under sub- section (h) may apply for an order that the child’s testimony be taken in a room outside the courtroom and be televised by 2-way closed circuit television. The person seeking such an order shall apply for such an order at least 7 days before the trial date, unless the court finds on the record that the need for such an order was not reasonably foresee- able. (B) The court may order that the testi- mony of the child be taken by closed-circuit television as provided in subparagraph (A) if the court finds that the child is unable to testify in open court in the presence of the defendant, for any of the following reasons: (i) The child is unable to testify because of fear. (ii) There is a substantial likelihood, es- tablished by expert testimony, that the child would suffer emotional trauma from testifying. (iii) The child suffers a mental or other infirmity.