To obtain information on the financial dealings of organized crime in Switzerland, the United States must show both probable cause and the absence of a reasonable possibility of conviction without the information. Thus, Switzerland has preserved its prudent and traditional requirement of secrecy with respect to transactions of those who utilize its financial institutions. Because the Treaty was drafted in two different legal environments, conflicts may rise under it. The limitation on use of any disclosed information to investigations or proceedings for which the information originally was granted does not coincide with the United States rule of evidence that allows official written statements and certificates to be introduced in other proceedings. Additionally, financial information concerning a suspect that is disclosed under the Treaty provisions pertaining to organized crime may not be introduced in an investigation of another substantive crime allegedly committed by the suspect. When considered in light of the historical preference of the Swiss for financial secrecy and the relatively incidental amount of criminal assistance that the United States will be called on to render to Switzerland, the Treaty is a further accomplishment in the fight against organized crime. The reconciliation in the Treaty of the policy objectives of the United States in tracing financial flows through Swiss financial institutions and the Swiss fundamental right to financial privacy indicates that a particularized solution was necessary and that the bilateral agreement was the most efficacious and expeditious manner of achieving that solution. The Treaty has eliminated a source of friction between the two countries, and thus would seem to have strengthened the relations between the two countries, although the test of its actual ability to resolve problems in designated situations awaits its ratification and use. Since there remain more than fifteen other nations that maintain financial secrecy vis-a-vis foreign investigations, the Treaty is significant because it may stimulate other bilateral treaties with these countries.
James H. Bloem,
7 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vjtl/vol7/iss2/7