Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type


Publication Date





Law School, University of Minnesota




Constitutional criminal procedural rights are familiar to contemporary criminal law scholars and practitioners alike. But today, U.S. criminal justice may diverge substantially from its centuries-old framework when all three branches recognize only a core set of inviolable rights, implicitly or explicitly discarding others. This criminal procedural line drawing takes place when the U.S. criminal justice system engages in law enforcement cooperation with foreign criminal justice systems in order to advance criminal cases.

This Article describes the two forms of this criminal procedural line drawing. The first is a “core criminal procedure” approach, rooted in fundamental rights, that arises in the exchange of electronic evidence but is related to two prior eras’ cross-sovereign criminal procedural articulation—the Warren Court incorporation of the Bill of Rights’ criminal procedural protections and engagement with international human rights instruments. Alternatively, courts today may use an ad hoc “outlier” approach, only excluding foreign evidence, convictions, or extradition requests in extreme circumstances that “shock the conscience.”

This Article argues that the former approach is superior to the latter, and argues for a methodology—rooted in constitutional law, international human rights, and comparative legal functionalism—for evaluating foreign legal systems. To support this argument, this Article draws on political theory concerned with global justice. This Article concludes by considering how core criminal procedure informs U.S. engagement with international criminal tribunals and investigative mechanisms.

Find on SSRN



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.