Defenses for Defeating Extradition

Fighting Extradition

In handcuffs being extradited

The defenses to extradition are different depending on whether an individual is being subjected to interstate or international extradition. If you are attempting to fight efforts to extradite you or a loved one, success hinges on some rather intricate concepts. It is essential that you retain an attorney experienced in contesting extradition if you want to have the best opportunity to avoid being extradited. The lawyers on the staff of the Law Offices of Jonathan F. Marshall have over sixty years of defense experience, including many years as prosecutors in the case of two of our attorneys. We would be happy to assist you and initial consultations with any lawyer at our firm are free of charge. Please do not hesitate to contact us at 1-877-450-8301 to speak to an attorney. The information that follows should also provide guidance regarding strategies for defeating extradition.

Defenses to Interstate Extradition

The Uniform Criminal Extradition Act regulates extradition between states and fighting this process is challenging. A fundamental assumption underlying this law is the idea that the individual to be extradited is a fugitive “on the run” from the criminal charges. There are, nevertheless, several viable defenses for contesting interstate extradition, including:

  1. Improper Identification
    The first opportunity we have to challenge extradition is when you face what’s called an identification hearing. This is the first formal proceeding that occurs after you are arrested in New Jersey and you are facing extradition to another state. This hearing protects your rights under New Jersey law by making sure that you, in fact, are the person that the other state wants. If the other state cannot prove this, New Jersey will not allow your extradition. Our extradition defense attorneys can help at an identification hearing by negotiating with the demanding state to resolve the charges while you are still in New Jersey, thus avoiding the expense, hassle and embarrassment of being sent to the other state.
  2. Habeas Corpus Violations
    After the identification hearing but before delivery to the agent of the demanding state, our extradition criminal lawyers can request a hearing in New Jersey based on habeas corpus to test the legality of your arrest and confinement. Furthermore, while this hearing is pending, we will move to have you released on bail so that you can avoid unnecessary confinement. When challenging extradition on petition for habeas corpus, we will inquire into (1) whether the extradition documents on their face are in order, (2) whether you have been charged with a crime in the demanding state, (3) whether you are the person named in the request for extradition, and (4) whether you are actually a fugitive. Again, we will use this time during the proceeding to further negotiate with the prosecutor of the demanding state and raise defenses opposing extradition to or from New Jersey. For instance, if our N.J. Extradition attorneys can prove that they were not in the demanding state at the time of the alleged crime this will defeat the jurisdiction of the asylum state (where you are now residing) to extradite you back to the demanding state to face charges. In other words, this will prove that you not a “fugitive from justice” within the United States constitutional provision whereby extradition is provided for. Another way of preventing extradition is by challenging the arrest based on probable cause. In many instances this is applicable if the alleged fugitive was not indicted or convicted in the demanding state (no prior judicial determination as to probable cause in the demanding state). If the demanding state cannot show sufficient facts to support a finding of probable cause to believe you committed the crime charged then the extradition proceedings will cease.

Defenses to International Extradition

Action to extradite an individual to or from the United States are guided by Federal Law and International Treaty. Whenever there is a treaty or convention for extradition between the United States and a foreign country, the alleged fugitive will be brought before a Judge for purposes of certification for extradition. A fugitive opposing an extradition request is limited to introducing only explanatory evidence. Under the United States extradition process and procedure, set forth in 18 U.S.C. Sections 3181 – 3195, the magistrate judge’s scope of review is limited to only determining whether (1) the magistrate had jurisdiction, (2) whether the offense charged is extraditable within the treaty and (3) whether there is probable cause that the detainee committed the alleged offense. If the government establishes these factors at the extradition hearing then the Court may certify a detainee’s extraditability. Generally, these orders are not directly appealable, but we may seek collateral review in the Court of Appeals through habeas corpus or a declaratory challenging the District Court’s interpretation of the principles of dual criminality and specialty, which are explained below.

Recantation Testimony

Generally, evidence that completely explains away or obliterates probable cause is the only evidence admissible at an extradition hearing, whereas the evidence that merely controverts the existence of probable cause, or raises a defense, is not admissible. In cases where the only probable cause is via an affidavit and the related witness later retracts their statement, recantation testimony may be introduced to defeat extradition.

Specialty Doctrine

The specialty doctrine generally provides that an extradited defendant may not be prosecuted for an offense different from or other than an offense for which the defendant has been extradited. United States v Rauscher (1886) 119 US 407. The doctrine of specialty also generally grants an accused who has been extradited from a foreign country corresponding immunity from civil proceedings in the United States.

Dual Criminality Requirement

One of the prime considerations in determining whether a person is subject to extradition under a treaty between the United States and a foreign nation has traditionally been whether the offense the person is charged with involves “dual criminality.” Otherwise stated, the question is whether the charged offense would be a serious crime under the laws of both the requesting country and the country from which extradition is requested. This principle is often considered by the courts, both in determining whether to extradite an accused from the United States, or whether to prosecute a person extradited from a foreign nation. The dual criminality requirement has been held to require two findings by an extradition court: (1) that the acts alleged to have been taken by the accused, if proven, would be crimes under United States law; and (2) that the crime charged by the requesting nation be substantially analogous to a United States crime.


Some countries still use practices which are considered by the United States to be cruel and unusual punishments. If there is a possibility that, upon being extradited, a suspect may face punishments considered as “torture” extradition, we may freeze the extradition proceedings. Under the Administrative Procedure Act, we may petition for review of the decision by the Secretary of State to extradite you. Courts reviewing such petitions are required to set aside the Secretary’s extradition decisions if they are found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

If you or a loved one is in the process of being extradited, you need to contact an experienced extradition lawyer. The Law Offices of Jonathan F. Marshall handles interstate extradition as well as international extradition proceedings. Our lawyers can often streamline this process to insure that an individual is treated as fairly and efficiently as possible. An attorney from our firm can often avoid needless incarceration and, where appropriate, may even avoid extradition altogether. One of our attorneys is available 24/7 to assist you so do not hesitate to contact us anytime. Lawyers are ready to assist immediately at 1-877-450-8301.