Jurisdiction

Another means by the which the United States exerts extraterritorial jurisdiction is through courts-martial. The three types of courts-martial are general, special, and summary. General courts-martial adhere to the Uniform Code of Military Justice. They have jurisdiction to try any person who is subject to a trial by a military tribunal for violations of the laws of war. Special courts-martial have jurisdiction to try persons subject to the code for noncapital offenses, and capital offenses under regulations prescribed by the President of the United States, who is also authorized to determine punishment. Summary courts-martial have jurisdiction to try persons subject to the code, except officers, cadets, aviation cadets, and midshipmen, for any noncapital offense. No person may be brought to trial, however, if he objects.

Status-of-forces (SOFAs) agreements were created to aid in the determination of which courts have jurisdiction over visiting forces. These agreements established "concurrent jurisdiction," which allowed courts-martial to adhere to both the jurisdictions of the "sending" and "receiving" states. The "sending" state (e.g., the United States over its troops in Germany) retains its ability to perform its military mission by reserving the right to try persons for offenses against the nation or its property (e.g., theft by a U.S. serviceman against U.S. government property), and for offenses borne out of official duty. The "receiving state" retains its territorial sovereignty and jurisdiction over all other offenses (e.g., violent crimes against German nationals) (Bassiouni, p. 119).

The United States and other states engage in proactive policing extraterritorially, such as the use of surveillance, undercover sting operations, controlled deliveries of contraband (whereby the delivery of the contraband is allowed in order to trace and detect the involvement of upperechelon criminals), and the use of liaison officers whereby federal agencies station officials permanently in foreign countries. States try, as much as possible, to abide by the internal law of the foreign state when conducting investigations.

Traditionally, the United States has not recognized and executed the penal laws of another country. To the extent that authority to recognize foreign penal judgments has existed in the U.S. (e.g., through treaty or statute), such recognition has been restricted. The limited authority to recognize and enforce foreign penal judgments combined with the traditional suspicion with foreign criminal procedure has resulted in decisions that substantially limit the effect accorded criminal judgments abroad. Few statutes specifically refer to convictions in courts of a foreign sovereign. Some statutes expressly exclude such convictions, while most are silent or ambiguous.

As between state and federal courts, a federal court has original jurisdiction over all violations of federal law. In cases where one act constitutes an offense against both a state and the United States, both the federal and state courts have jurisdiction of the offense, unless the U.S. Constitution or an act of Congress gives exclusive jurisdiction to the federal courts. A federal court can obtain jurisdiction over a defendant's nonfederal offense where there exists a joinder of a codefendant who is charged with federal violations. If a constitutionally authorized federal nexus exists, the federal government can prosecute crimes anywhere in the United States.

The same act may constitute a crime under a state statute and violate a municipal ordinance. As a result, the courts of the state as well as of the municipality may have jurisdiction over the offense, assuming that the municipality has authority to enact the ordinance. Where two courts have concurrent jurisdiction over the same subject matter, the court that first obtains jurisdiction retains it until the end of the controversy, to the exclusion of the other courts.

The United States and other states employ a type of conflict-of-laws, which is a formula to determine which country's laws to apply in a specific case, or limit the exercise on jurisdiction to prescribe in criminal matters. Even when they have jurisdictional bases, a nation may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable. A state or court will consider various factors in this determination, such as the link of the activity to the territory of the regulating state, that is, the extent to which the activity occurs within the territory, or has substantial, direct, and foreseeable effect upon or in the territory; the connections, such as nationality, residence, or economic activity, between the regulating state and the person principally responsible for the activity to be regulated, or between that state and those whom the regulation is designed to protect; and the likelihood of conflict with regulation by another state.

Proof of jurisdiction beyond a reasonable doubt is an integral element of the state's burden in a criminal prosecution. The state can fulfill its burden of showing that jurisdiction properly lies in a state court by presenting evidence that any or all of essential elements of the alleged offense took place in the state.

In the future a shrinking world guarantees that criminal jurisdiction between national governments and state and local governments will inevitably overlap. Additional means will be required to resolve conflicting jurisdictional claims and negotiate agreements and mechanisms to cooperate in the investigation, adjudication, and supervision of international crimes and criminals.