18 U.S.C. § 3504 — Litigation concerning sources of evidence

Page 777 TITLE 18—CRIMES AND CRIMINAL PROCEDURE § 3504 The presence or absence of any of the above- mentioned factors to be taken into consider- ation by the judge need not be conclusive on the issue of voluntariness of the confession. (c) In any criminal prosecution by the United States or by the District of Columbia, a confes- sion made or given by a person who is a defend- ant therein, while such person was under arrest or other detention in the custody of any law-en- forcement officer or law-enforcement agency, shall not be inadmissible solely because of delay in bringing such person before a magistrate judge or other officer empowered to commit per- sons charged with offenses against the laws of the United States or of the District of Columbia if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such per- son within six hours immediately following his arrest or other detention: Provided, That the time limitation contained in this subsection shall not apply in any case in which the delay in bringing such person before such magistrate judge or other officer beyond such six-hour pe- riod is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate judge or other officer. (d) Nothing contained in this section shall bar the admission in evidence of any confession made or given voluntarily by any person to any other person without interrogation by anyone, or at any time at which the person who made or gave such confession was not under arrest or other detention. (e) As used in this section, the term ‘‘confes- sion’’ means any confession of guilt of any criminal offense or any self-incriminating state- ment made or given orally or in writing. (Added Pub. L. 90–351, title II, § 701(a), June 19, 1968, 82 Stat. 210; amended Pub. L. 90–578, title III, § 301(a)(3), Oct. 17, 1968, 82 Stat. 1115; Pub. L. 101–650, title III, § 321, Dec. 1, 1990, 104 Stat. 5117.) Editorial Notes CONSTITUTIONALITY For information regarding the constitutionality of this section, as added by section 701(a) of Pub. L. 90–351, see the Table of Laws Held Unconstitutional in Whole or in Part by the Supreme Court on the Constitution Annotated website, constitution.congress.gov. AMENDMENTS 1968—Subsec. (c). Pub. L. 90–578 substituted ‘‘mag- istrate’’ for ‘‘commissioner’’ wherever appearing. Statutory Notes and Related Subsidiaries CHANGE OF NAME Words ‘‘magistrate judge’’ substituted for ‘‘mag- istrate’’ wherever appearing in subsec. (c) pursuant to section 321 of Pub. L. 101–650, set out as a note under section 631 of Title 28, Judiciary and Judicial Proce- dure. § 3502. Admissibility in evidence of eye witness testimony The testimony of a witness that he saw the ac- cused commit or participate in the commission of the crime for which the accused is being tried shall be admissible in evidence in a criminal prosecution in any trial court ordained and es- tablished under article III of the Constitution of the United States. (Added Pub. L. 90–351, title II, § 701(a), June 19, 1968, 82 Stat. 211.) [§ 3503. Repealed. Pub. L. 107–273, div. B, title IV, § 4002(c)(3)(A), Nov. 2, 2002, 116 Stat. 1809] Section, added Pub. L. 91–452, title VI, § 601(a), Oct. 15, 1970, 84 Stat. 934, related to depositions to preserve tes- timony. § 3504. Litigation concerning sources of evidence (a) In any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, or other au- thority of the United States— (1) upon a claim by a party aggrieved that evidence is inadmissible because it is the pri- mary product of an unlawful act or because it was obtained by the exploitation of an unlaw- ful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act; (2) disclosure of information for a deter- mination if evidence is inadmissible because it is the primary product of an unlawful act oc- curring prior to June 19, 1968, or because it was obtained by the exploitation of an unlaw- ful act occurring prior to June 19, 1968, shall not be required unless such information may be relevant to a pending claim of such inad- missibility; and (3) no claim shall be considered that evi- dence of an event is inadmissible on the ground that such evidence was obtained by the exploitation of an unlawful act occurring prior to June 19, 1968, if such event occurred more than five years after such allegedly unlawful act. (b) As used in this section ‘‘unlawful act’’ means any act the use of any electronic, me- chanical, or other device (as defined in section 2510(5) of this title) in violation of the Constitu- tion or laws of the United States or any regula- tion or standard promulgated pursuant thereto. (Added Pub. L. 91–452, title VII, § 702(a), Oct. 15, 1970, 84 Stat. 935.) Statutory Notes and Related Subsidiaries CONGRESSIONAL STATEMENT OF FINDINGS Pub. L. 91–452, title VII, § 701, Oct. 15, 1970, 84 Stat. 935, provided that: ‘‘The Congress finds that claims that evidence offered in proceedings was obtained by the exploitation of unlawful acts, and is therefore inad- missible in evidence, (1) often cannot reliably be deter- mined when such claims concern evidence of events oc- curring years after the allegedly unlawful act, and (2) when the allegedly unlawful act has occurred more than five years prior to the event in question, there is virtually no likelihood that the evidence offered to prove the event has been obtained by the exploitation of that allegedly unlawful act.’’ APPLICABILITY TO PROCEEDINGS Pub. L. 91–452, title VII, § 703, Oct. 15, 1970, 84 Stat. 936, provided that: ‘‘This title [enacting this section and provisions set as notes under this section] shall apply to all proceedings, regardless of when com- 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.