Federal Rule of Criminal Procedure 58(b)(2)(H)

The Federal Rule of Criminal Procedure 58 was amended in 2014 to include subsection 58(b)(2)(H), which states:

At the defendant’s initial appearance on a petty offense or other misdemeanor charge, the magistrate judge must inform the defendant of the following: . . . (H) that a defendant who is not a United States citizen may request that an attorney for the government or a federal law enforcement official notify a consular officer from the defendant’s country of nationality that the defendant has been arrested—but that even without the defendant’s request, a treaty or other international agreement may require consular notification.

Fed. R. Crim. P. 58(b)(2)(H). This amendment took effect on December 1, 2014.

The United States is party to the Vienna Convention on Consular Relations, which is an international treaty that governs the consular relations between different nations. Article 36 of the Vienna Convention on Consular Relations provides that a foreign citizen who is arrested and detained may request that his consul be notified of his arrest and detention. Further, the United States is party to numerous bilateral agreements that fully require the arresting and detaining nation to notify the foreign citizen’s consul of his arrest and detention.

This subsection requires a magistrate judge to provide every defendant with this information in order to ensure that all United States treaty obligations, including the Vienna Convention on Consular Relations and bilateral agreements, are satisfied. A determination of the defendant’s citizenship does not need to be made before the information is provided to him or her.

In Sanchez-Llamas v. Oregon, the Supreme Court held that where a foreign citizen defendant is not apprised of his Article 36 rights, he has no judicial remedy. However, this new subsection does not address these potential rights and remedies.

Posted in Article Archive, Court Watch, Rule Amendments