Probable Cause and Due Process in International Extradition

Abstract

At an international extradition hearing, the government must prove there is probable cause that the individual wanted for extradition committed an offense in the requesting country. In assessing the admissibility of the evidence presented by the individual, courts generally apply the rule of “non-contradiction.” Noncontradiction allows individuals to introduce evidence that explains the government’s case, but denies them the opportunity to present evidence that simply contradicts it.

I argue that forbidding individuals from contradicting the government’s evidence violates due process. Due process requires the government to afford individuals a meaningful opportunity to contest the evidence when the government intends to deprive them of liberty or property. Applying the balancing test of Mathews v. Eldridge to the particularities of international extradition suggests the unconstitutionality of the rule of non-contradiction because of the heavy weight of the liberty interests of individuals, and because extradition treaties, the extradition statute, and the courts, afford requesting countries a plethora of other procedural advantages.

Keywords: Probable Cause, Due Process, International Extradition, Non-Contradiction

JEL Classification: K33, K14