No Remedy for This Wrong? Analyzing the Appropriate Remedy for Violations of California Penal Code § 834c

34 Pages Posted: 23 Aug 2012

See all articles by Jared Olen

Jared Olen

affiliation not provided to SSRN

Date Written: August 23, 2012


Article 36(1)(b) of the Vienna Convention on Consular Relations provides that a foreign national of a state-party has the right to have her consulate notified of her arrest upon detention. Many United Supreme Court and other federal courts have grappled with issues stemming from that right, including whether the treaty creates privately-enforceable rights. However, California was unique in that it enacted California Penal Code § 834c, which codifies as state law the right to consular notification.

While this codification precludes much discussion about privately-enforceable rights, the statute is, however, silent on what remedy should be applied if law enforcement violate the § 834c's commands. The issue of a remedy most often comes up when a foreign national has been arrested and makes a confession without having been notified of her right to consular notification. She often then seeks suppression of that confession in order to remedy that violation. Courts have split several ways on the appropriate remedy, and this paper explores four approaches taken by courts in dealing with failures to notify. The author also delves into the legislative history of § 834c to ascertain the most appropriate remedy for violations of the section. Lastly, the benefits and disadvantage of five approaches are explored, ending with the unfortunate conclusion that the Victims' Bill of Rights in the California Constitution essentially works to preclude a state-level suppression remedy. Therefore, given the current state of federal law regarding Article 36(1)(b), criminal defense attorneys should seek to include the failure to notify in the overall voluntariness inquiry when attempting to suppress a confession on due-process grounds under the Fifth or Fourteenth Amendments.

Keywords: California Penal Code § 834c, Vienna Convention on Consular Relations, Article 36(1)(b), confessions, due process, suppression, exclusionary rule, law enforcement, treaty

JEL Classification: K14, K33, K40, K41, K49

Suggested Citation

Olen, Jared, No Remedy for This Wrong? Analyzing the Appropriate Remedy for Violations of California Penal Code § 834c (August 23, 2012). Available at SSRN: or

Jared Olen (Contact Author)

affiliation not provided to SSRN ( email )

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