Convicting the Innocent in Transnational Criminal Cases: A Comparative Institutional Analysis Approach to the Problem

The adjudication of transnational criminal cases is burdened by a very narrow compulsory process mechanism known as Mutual Legal Assistance Treaties. These treaties regularize foreign evidence gathering for prosecutors and explicitly prevent their use by criminal defendants. The danger of inaccurate verdicts and wrongful convictions that may result from unequal access to evidence highlights the need to resolve this flawed transnational adjudication process, and specifically, its evidentiary method. Building on the works of Neil Komesar, Ronald Coase, and Mancur Nelson, the author utilizes a comparative institutional analysis approach to consider the question of how to obtain parity between the prosecution and the defense in the ability to compel foreign evidence in transnational criminal cases. The issue is of great importance in a post-9/11 world where the fairness and accuracy norms that underpin criminal prosecutions are increasingly ephemeral and illusory. The comparative framework illumes the important considerations for identifying the institution best suited to achieve the norm of parity. Criminal process scholars have not explicitly utilized the comparative institutional analysis framework. This oversight is a mistake. The comparative framework provides an ideal theory to dissect criminal process questions. Explicit institutional comparison, rather than simplistic single institutional considerations, should underlie criminal process scholarship addressing fairness and equity norms.