Understanding the Sanchez-Llamas Decision


The most substantive decision by the U.S. Supreme Court on Article 36 claims has great significance for the future litigation of the issue, both in trial proceedings and on appeal.  In Sanchez Llamas v. Oregon, 548 U.S. 331 (2006), the Court combined the cases of two foreign nationals who had unsuccessfully raised Article 36 claims in state court proceedings [1] and granted review to address three unanswered questions:


“First, does Article 36 create rights that defendants may invoke against the detaining authorities in a criminal trial or in a postconviction proceeding? Second, does a violation of Article 36 require suppression of a defendant's statements to police? Third, may a State, in a postconviction proceeding, treat a defendant's Article 36 claim as defaulted because he failed to raise the claim at trial?” [2]


A bare majority of the Court bypassed the first and arguably most basic issue, assuming without deciding that Article 36 does confer individually-enforceable rights, but finding it “unnecessary to resolve the question” because the petitioners were not entitled to the requested relief. [3] Since “neither the Vienna Convention itself nor our precedents applying the exclusionary rule support suppression” on these grounds, the exclusion of evidence is never an available remedy for an Article 36 violation per se.  Although the Court should give “respectful consideration” to the post-Breard holdings of the International Court of Justice on procedural default and Article 36 claims, “nothing in the ICJ’s structure or purpose suggests that its interpretations were intended to be binding on U. S. courts” and the ICJ interpretation “sweeps too broadly, for it reads the ‘full effect’ proviso in a way that leaves little room for the clear instruction in Article 36(2) that Article 36 rights ‘be exercised in conformity with the laws . . . of the receiving State.’”  Accordingly, “a State may apply its regular procedural default rules to Convention claims.” [4]


However, the majority noted that an Article 36 violation can be relevant to determining the admissibility of a defendant’s statements, and that other more limited pre-trial remedies could be available for the violation standing alone:


Finally, suppression is not the only means of vindicating Vienna Convention rights. A defendant can raise an Article 36 claim as part of a broader challenge to the voluntariness of his statements to police. If he raises an Article 36 violation at trial, a court can make appropriate accommodations to ensure that the defendant secures, to the extent possible, the benefits of consular assistance. [5]


Brief though it is, this description of potential remedies has potentially far-ranging implications.  First, any violation of Article 36 obligations should now be included in the totality of the circumstances when assessing the involuntariness of custodial statements and in determining whether a Miranda waiver leading to those statements was knowing, intelligent and voluntary.  Second, in some circumstances, the treaty obligation to advise the detainee “without delay” must attach prior to or during interrogation; if the consular rights advisement could always be delayed until after a statement was obtained, there would never be a viable “Article 36 claim” to introduce “as part of a broader challenge to the voluntariness” of those statements.  


Furthermore, the Court has conceded that the defendant has independent standing to raise the claim for the purpose of securing benefits, strongly suggesting the existence of an individual right and calling into question precedent cases to the contrary. [6]  Where a trial court arbitrarily refuses to grant a reasonable accommodation or trial counsel fails to raise a known violation, those issues could likely now be considered as grounds for an appeal.  Nor does Sanchez-Llamas absolutely preclude state court habeas relief for already-defaulted Article 36 claims; although a state court “may apply” its procedural default rules, nothing in the decision requires it to do so.  Many state courts of final appeal possess the discretionary authority to set aside procedural barriers where the interests of fundamental justice so require, and might be persuaded to do so if presented with particularly egregious consequences arising from a denial of consular rights. [7] Finally, the holding on procedural default and the reference to “appropriate accommodations” that trial courts may provide places the onus squarely on trial counsel to investigate, develop and preserve Article 36 violations.


Perhaps most importantly, the Sanchez-Llamas Court left for another day a decision on whether individual rights are conferred under Article 36, along with all the legal consequences implicit in any such determination. [8]  Until such time as the Supreme Court rules definitely on the scope of individual rights conferred under the treaty and the full range of remedies available for its violation, important aspects of this issue must be treated as unresolved legal questions.  And, although there is language in Sanchez-Llamas indicating that the relevant ICJ decisions are not directly binding on the domestic courts, [9] the weight to be attached to Article 36 interpretations by the ICJ that (unlike procedural default) do not conflict with domestic law remains an unsettled question. The “respectful consideration” to be accorded to the ICJ indicates that its interpretations of other still-unresolved aspects of Article 36 claims should always be presented as persuasive authority.  To summarize, the pressing legal questions still to be answered include the following:







Applying Sanchez-Llamas to Pre-trial Claims


Suppression Motions


Two factors should be kept in mind when developing suppression claims that incorporate Article 36 violations.  First, after Sanchez-Llamas, suppression of statements will not be granted for an Article 36 violation standing alone. It is essential to develop other grounds for suppression to which the treaty breach can then be colorably connected.  Second, international and domestic authority holds that the police are not required to suspend an interrogation pending notification of the consulate, nor need they contact the consulate immediately after the detainee requests notification. [10] However, advisement of the right must take place as soon as the police know or suspect foreign nationality, which will often be prior to interrogation or during its earliest stages. [11] The central element in this component of the suppression motion must therefore be a demonstration that simply advising the suspect of his consular rights at the required time would have prompted him to request consular notification and to invoke his Fifth or Sixth Amendment rights while awaiting the consulate’s assistance. 


In cases where the detention prior to the incriminating statement was clearly long enough to have triggered the obligation to notify the consulate, counsel might also seek to establish that consular notification was readily achievable, resulting in a prompt response that would also have addressed the identified involuntariness factors (such as the coercive effects of multiple interrogations over several days).


An Article 36 claim should be relevant to the involuntariness analysis whenever:


  1. the foreign national was in some form of detention at the time that the incriminating statement was made;
  2. there are cogent grounds for suppression apart from the Article 36 violation;
  3. the interrogating police knew or had reason to suspect that the detainee was a foreign national prior to obtaining the incriminating statement;
  4. the detainee was not advised of the right to consular notification and would have exercised that right;
  5. the detainee would have refused to answer any further questions upon invoking the right to consular notification.


 In cases of prolonged detention prior to securing the statement, additional factors may support involuntariness:


  1. the interrogation prior to the statement was of sufficient duration to have allowed the consulate to respond and communicate with its national;
  2. the consulate would have responded promptly, ensuring that the detainee understood her rights and/or arranging for the immediate presence of an attorney;
  3. the violation was prejudicial, in the sense that the absence of consular notification can be plausibly linked to the suspect’s statement and that the statement itself was a major element in the subsequent conviction or sentence.



Securing the “benefits of consular assistance”


It is not uncommon for awareness of the treaty violation and its implications to surface at a later stage in the trial proceedings.  Assessing the potentially harmful effects of the absence of consular assistance should thus span the entire time interval between the first knowledge by the arresting authorities of probable foreign nationality and the consulate’s eventual awareness of the detention.  Depending on the stage of the proceedings and the supporting facts, counsel should thus file or supplement motions addressing a range of issues related to the delay in consular notification.  Those motions include:







As with all Article 36 claims, it is important to demonstrate case-specific prejudice and to argue that the denial of the motion would be harmful to the defendant’s right to a fair trial.  Counsel should formally object if the motion is denied, to preserve the issue on the record for potential appellate review.


Seeking a continuance or rehearing is not the only way to interpret the “appropriate accommodations” language of Sanchez-Llamas.  For example, even where suppression is ultimately denied, the defense could request a jury instruction incorporating the Article 36 violation (and the potential benefits of timely consular assistance) into the jury’s determination of involuntariness.  Regardless of the case circumstances, however, counsel should in all cases acquaint the trial court with the Article 36 violations and preserve the claim by requesting the court to apply the general remedy recognized by Sanchez-Llamas.


After Sanchez-Llamas: Article 36 violations and “involuntariness” claims


Although there have been comparatively few opinions on this issue, the general tendency of the appellate courts has been to construe the “broader challenge to the voluntariness of his statement” language of Sanchez-Llamas as referring to the full range of voluntariness issues, including the sufficiency of Miranda waivers.  Examples include:


State v. Morales-Mulato, 744 N.W.2d 679 (Minn. App. 2008) (holding that “suppression is not an appropriate remedy for violation of a foreign detainee's rights under article 36 of the Vienna Convention, but may be considered in assessing whether a statement was voluntary, knowing, and intelligent.”)


State v. Banda, 639 S.E.2d 36, n. 11 (S.C., Dec. 11, 2006) (interpreting Sanchez-Llamas as indicating that a defendant “may successfully move for a Jackson v. Denno hearing to suppress a statement by asserting a violation of the consular notification provisions of a treaty, along with other factors indicating the involuntariness of a statement”)  


Anaya-Plasencia v. the State, 2007 Ga. App. LEXIS 175 at *9 (Feb. 23, 2007)  (defendant’s opportunity to  cross-examine interrogating detective regarding failure to provide Article 36 advisement falls under “broader challenge” requirements of Sanchez-Llamas)


Sierra v. the State of Texas, 2007 Tex. Crim. App. LEXIS 370 at *7 (Tex. Crim. App., Mar. 20, 2007) (holding that application of the exclusionary rule is not an available remedy for an Article 36 violation, while recognizing the broader challenge to voluntariness under Sanchez-Llamas as an appropriate “means of vindicating Vienna Convention rights.”)


State v. Cabrera, 903 A.2d 427 (N.J. Super., July 31, 2006) (observing that Sanchez-Llamas “made clear” that a defendant can raise an Article 36 claim as part of a broader challenge to voluntariness). 



After Sanchez-Llamas: Article 36 violations and ineffective assistance claims


Viewed purely in Sixth Amendment terms, it is largely immaterial whether or not Article 36 confers individual and justiciable rights, since the constitutional issue is instead the right to the effective assistance of counsel.  Determining the effectiveness of trial or appellate counsel is a case-specific analysis based on the application of prevailing professional norms, including the ABA Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases and other similar standards.  Representing a foreign national in criminal proceedings may well require recourse to a different set of criteria for determining effective representation, including the obligation to advise the client of the option of consular notification and to seek consular assistance on the defendant's behalf. (See, e.g., ABA Guideline 10.6, available here).


Both before and after Sanchez-Llamas, a number of courts have recognized that trial counsel’s failure to seek or accept available consular assistance on behalf of a foreign client or to raise an Article 36 violation at trial may constitute ineffective assistance. Where counsel’s unprofessional error is demonstrably prejudicial, relief is available—just as it would be for any other ineffectiveness claim. Examples include:

Osagiede v. United States
, 2008 U.S. App. LEXIS 19237, No. 07-1131 (7th Cir. Sept. 9, 2008) (finding trial counsel “was ineffective for failing to seek a remedy” for Article 36 violation and remanding non-capital habeas case for prejudice determination)

Deitz v. Money, 391 F.3d 804 (6th Cir. 2004) (remanding non-capital case to determine, inter alia, if trial attorney’s failure to “notify Deitz of his right to contact the Mexican consulate …deprived him of the effective assistance of counsel.”)

Valdez v. State, 46 P.3d 703, 710 (Okla. Crim. App. 2000) (in capital case, finding Article 36 claim procedurally defaulted but remanding for resentencing, on the grounds that trial counsel’s failure to seek assistance from Mexican Consulate constituted deficient and prejudicial performance)

Torres v. State
, 120 P.3d 1184, 1187 (Okla. Crim. App. 2005) (in capital case, applying ICJ-mandated remedy of "review and reconsideration" and Rangel-Gonzalez  prejudice test to find prejudice at penalty phase arising from Article 36 violation)


Marquez-Burrola v. State, 157 P.3d 749 (Okla. Crim. App. 2007) (modifying death sentence to life imprisonment for trial counsel’s failure to develop mitigating evidence despite available consular assistance).

See also Murphy v. Netherland, 116 F.3d 97, 100 (4th Cir. 1997) (in capital case, treaties such as the VCCR “are one of the first sources that would be consulted by a reasonably diligent counsel representing a foreign national.”)









[1]  Mexican national Moises Sanchez-Llamas was convicted of the attempted murder of a police officer, following a drunken altercation with police in Oregon.  He unsuccessfully raised the treaty violation in a pre-trial motion to suppress; after an 11-hour interrogation, he gave a confession that included factual inaccuracies regarding the use of a second weapon. The transcript of his interrogation also established that he understood his Miranda rights as meaning that “it would be better if I told the truth and everything.” The Oregon courts denied relief on the grounds that the treaty does not create individual legal rights and suppression was thus not an available remedy.  Honduran national Mario Bustillo did not object to the treaty violation at trial or on direct appeal, first raising the claim in his state habeas corpus petition challenging the validity of his conviction; the Virginia  courts found that his treaty claim was procedurally defaulted. His submission to the Supreme Court included evidence that another person subsequently confessed to the murder for which Bustillo was convicted, after the Honduran Consulate assisted habeas counsel in locating that individual in Honduras. Bustillo had raised a defense of mistaken identity at trial, but trial counsel was unable to locate the other suspect. In both cases, police were aware of the nationality of the defendants but failed to advise them of their consular rights.


[2]  Sanchez-Llamas v. Oregon, 126 S.Ct. 2669, 2674 (2006).


[3]  Sanchez-Llamas, 126 S.Ct. 2669, at 2677.  The four dissenting justices held that Article 36 does confer individual rights, but divided 3-1 on the availability of the requested remedies.


[4]  Id. at 2685-86.


[5]  Id. at 2682.


[6]  A number of courts had previously held that defendants lacked standing to raise an Article 36 violation because the VCCR creates no individual rights.  See, e.g., U.S. v. Emuegbunam, 268 F.3d 377 (6th Cir. 2001); Maharaj v. State, 778 So. 2d 944 (Fla. 2000); State v. Martinez-Rodriguez, P.3d 267 (N.M. 2001); Kasi v. Virginia, 508 S.E.2d 57, 63-64 (Va. 1998); State v. Navarro, 659 N.W.2d 487 (Wisc. App. 2003).


[7]  See, e.g., Valdez v. State, 46 P.3d 703, 710 (Okla. Crim. App. 2002) (court exercised “its power to grant relief when an error complained of has resulted in a miscarriage of justice”, for a procedurally-defaulted claim of ineffective assistance stemming from trial counsel’s prejudicial failure to seek consular assistance).


[8]  It is a basic axiom of U.S. law that where there is a legal right, there must be a legal remedy for its violation. See generally Marbury v. Madison, 5 U.S. 137 (1803).


[9]  Sanchez-Llamas, 126 S.Ct. 2669, at 2685 (noting in dicta the subsequent U.S. withdrawal from the VCCR Optional Protocol and observing that “it is doubtful that our courts should give decisive weight to the interpretation of a tribunal whose jurisdiction in this area is no longer recognized by the United States.”).


[10]  See Sanchez-Llamas at 2688-89 (Ginsburg, J., concurring in the judgment) (citing the ICJ decision in Avena and State Department documents to support the observation that “Article 36 of the Vienna Convention does not require the arresting authority to contact the consular post instantly….[n]or does that Article demand that questioning await notice to, and a response from, consular officials.”). The State Department “would normally expect notification to consular officials to have been made within 24 hours, and certainly within 72 hours.”  Consular Notification and Access (Part 3: FAQs).


[11]  Consular advisement “without delay” gives rise to an obligation to advise a detained foreign national of his Article 36 rights “as soon as it is realized that the person is a foreign national, or once there are grounds to think that the person is probably a foreign national.” Avena and Other Mexican Nationals, 2004 I.C.J. 128, at ¶ 88; United States v. Miranda, 65 F. Supp. 2d 1002, 1005 (D. Minn. 1999) (a period of two days constitutes a “delay” within the meaning of the Convention where there is no evidence that earlier advisement would not have been reasonably possible).