Judges in Mexico have temporarily halted the extradition of Joaquín Guzmán Loera, “El Chapo,” pending the outcome of appeals filed this week by Mr. Guzmán’s lawyers. The appeals argue in part that some of the accusations are based on hearsay rather than direct evidence.
I don’t know why lawyers in Colombia and elsewhere do not raise this challenge to hearsay when hearsay evidence is allowed allowed to obtain indictments. In the U.S. it is legal. Costello vs. U.S. 350 U.S. 359 (1956). In New York the procedure is to have a federal agent associated with the case appear as a “witness,” and state in hearsay fashion what his or her informant or co-defendant said—classic hearsay.
However the New York prosecutor must advise the grand jury that the evidence is second hand and it is free to insist upon the primary witness, United States vs. Estepa 471 F2d 1142 (1972). That’s why in the U.S. there exists this saying that “a grand jury can indict a ham sandwich” if that is what the prosecutor wants. Not all districts permit hearsay. The district of Northern Virginia insists on first-hand evidence.
In a related case, United States vs. Payton 353 F2d 996 at 999 (1966) one judge said that the use of hearsay before a grand jury makes a “mockery” of the fifth-amendment protection. [“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury.”]. However if courts in other countries have a categorical prohibition against hearsay in obtaining accusations or indictments, than those courts where this prohibition is in force, should insist that the U.S. state in its application for extradition that “no hearsay evidence was used to obtain the indictment” if they do not receive this, they should deny the extradition.
By David Zapp and Johanna Zapp