Criminal defendants have never been on a level playing field with the government when it comes to obtaining evidence. The mismatch is even greater when the evidence is located abroad, as is often true in the increasing number of FCPA, money laundering, export control, and economic sanctions cases the Department of Justice has pursued in recent years. While the government can take advantage of Mutual Legal Assistance Treaties (MLATs) and other methods to directly enlist the help of foreign law enforcement in compelling document production and testimony from overseas witnesses, defendants are relegated to the slower and often ineffective letters rogatory process. The government has resisted defendants' efforts to compel it to use MLATs to obtain exculpatory evidence for the defense, and courts have avoided forcing the government's hand.

But there are exceptions, and a recent one—the closely-watched United States v. Coburn, Civ. 2:19-cr-00120 (KM) (D.N.J. Apr. 27, 2022)—highlights a potential strategy defendants may pursue in the future to employ MLATs for their own purposes. Under pressure from a district judge with a singular background in this very issue, the government backed down and agreed to pursue MLAT requests for potentially exculpatory defense testimony. If other courts follow suit, it may help to close the investigative gap between prosecution and defense in cross-border criminal cases.