Effective December 1, 2014
Federal Rule of Criminal Procedure 5(d) describes the procedure for an initial appearance in a felony case. The rule has been amended to add an additional section to 5(d)(1), the section which describes what the judge must inform the defendant of. Prior to the amendment there were five subsections of Fed. R. Crim. P. 5(d)(1)(A-E), therefore the additional subsection (F) will make six. The amendment does not change any of the existing text of the rule, simply adds the language:
[T]hat 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.
The need for the additional section that addresses defendants whom are not a citizen of the United States derives from Article 36 of the Vienna Convention on Consular Regulations as well as bilateral agreements with numerous countries. Although Article 36 states that arresting officers are primarily responsible, by incorporative the advice regarding notice into the initial appearance procedure, the goal is not to relieve those officers of the duty. Instead, it provides additional assurance that the United States’ treaty obligations are fulfilled, and makes a judicial record of them. The Committee concluded that the most effective and efficient way to provide this information is to ensure every defendant receives it. Although it is likely that only defendants whom are held in custody would make such a request, the language makes clear that every defendant should be afforded such advice.
Questions still remain as to whether Article 36 creates individual rights and or remedies that may be invoked in a judicial proceeding. This amendment does not address those questions, nor does it create said rights or remedies.