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How does one obtain evidence located outside the United States for a criminal trial? For prosecutors, the answer is an exclusive treaty process: Mutual Legal Assistance Treaties (MLATs). Defendants, on the other hand, may only use an unpredictable, ineffective, non-treaty process: letters rogatory. The result is a selective advantage for law enforcement at the expense of the defendant. Though this imbalance necessarily raises Sixth Amendment Compulsory Process Clause concerns, MLATs have remained largely undisturbed because defendants still have some form of process, albeit a lesser one. But what happens when the letters rogatory process is also closed off to the defendant? When a defendant has no option but to rely on the government to submit an MLAT request on his behalf, can a district court compel the government to do so on behalf of this “zero-option defendant”? Recently, in United States v. McLellan, the First Circuit sought to answer this question.

This Comment explores the role of federal courts in protecting the rights of zero-option defendants in the MLAT context. It examines the First Circuit’s reasoning in McLellan and concludes that McLellan suffers from a fundamental misunderstanding of judicial compulsory power in the face of constitutionally-violative acts by the Executive Branch. This Comment proposes that, for zero-option defendants, judicial compulsory power is necessary to prevent the Compulsory Process Clause from becoming a dead letter.