20 GOTO 10:
In light of the long comment thread attached to yesterday's post on the Fifth Amendment, I thought I would do more research into the "foregone conclusion" exception to Fifth Amendment "act of production" privilege. I vaguely recall that there are a bunch of law review articles on it, but I figure google might have some good stuff, too. So I run a google search for "foregone conclusion" and "fifth amendment".
What's the first hit for this topic on Google? Hmmm..
What's the first hit for this topic on Google? Hmmm..
What case says I don't have the right to shut up and go limp until conviction or acquittal?
I'm not trying to be too cute here, but I really don't know, and thought the right to avoid being a "witness against" myself meant I didn't have to talk to the authorities or do anything that might help them convict me. Not true?
Heh.
It raises the question, though: Should BASIC always be capitalized, or not, when discussing it with a lay audience?
At that level of abstraction, no, that's not correct. See, e.g., Hiibel, Fisher, Doe II, the lineup cases, etc.
for the umpteenth time... not true.
for example, handwriting examplars. you can be forced to provide a handwriting sample. why? because it's not TESTIMONIAL evidence, it's direct evidence - it's evidence of HOW you write, and given the requisite PC/Court orders, you can't refuse.
you can also be required to stand in a lineup (although these days photo arrays or consecutive photos are more common).
you can also be required to provide a voice sample for computer analysis.
etc. etc.
so, simply put. to answer your question. it's NOT true.
the issue in this case is - is this like being forced to turn over a key, etc. (which is not a 5th amendment issue) or not.
but the idea that you have no duty to do ANYTHING that might help the authorities convict you is demonstrably false, as the examples above show
and in brief - the reason is that the 5th is (correctly) interpreted to refer to giving testimony against oneself, but NOT interpreted in the way you believe
I know this is OT, but if I was required to give a handwriting example, I would just scribble. No one can contend that the scribble I just wrote isn't my handwriting, after all, I am the sole 'author' of what my handwriting is.
And of course, that makes sense, because we all know that BASIC is called BASIC just because that's the abbreviation for Beginner's All-purpose Symbolic Instruction Code, right?
oh, and the most obvious example i forgot. you cannot refuse to submit to fingerprinting when arrested.
does this help them convict you? in many cases, yes? if you are innocent, it might help you exonerate yourself as well. you can't refuse to be fingerprinted.
oh, and in many jurisdictions, you gotta give a DNA sample as well
You are likewise perfectly free to mutilate your fingerprints (before you are arrested of course). I know many doctors that offer anesthesia-related services for those interested (for legal reasons, you still have to do the deed yourself).
That's usually a subpoena but the point is well taken.
I think your previous examples - vocal and handwriting samples - were actually better at refuting John's challenge. After all you can be fingerprinted and have blood drawn while "shut[ing] up and go[ing] limp."
Of course, the information is also in the computer, and the government has all it needs to keep the computer. They are free to try to get the information from there.
Unless you have a case law that says a person is required to provide a the combination for a safe that they haven't written anywhere, I don't see how the government wins this.
Maybe the government should try something more devious. Give him the computer (they already have a copy). Put it in his cell, and turn on a video and audio camera. There's a darned good chance that given enough time, the idiot would give in and look at what he had stored. Problem solved.
Can't he just respond truthfully and say there is no document that is responsive to the request?
Instead of trying to get the password in order to decrypt the files on the government's backup of Boucher's computer, can they just order him to present them with copies of every document on his computer? The key being that document would mean the unencrypted version.
I presume that when the Feds subpoena a company for all of it's e-mails they have to deliver unencrypted copies of the e-mails regardless of whether the company normally has them encrypted for the purpose of storage. Can law enforcement simply make an analogous request for all the documents on Boucher's computer, irrelavent to the encrypted copy they possess? Or is this one of those things that is different because corporations don't have the same rights against self-incrimination?
The gotcha here is that if Boucher has deleted the offending files already, such an order will yield nothing useful, as I presume the court can't order him to hand over all the files that once were on his computer.
Alternatively, say I use Truecrypt: http://www.truecrypt.org/. Truecrypt supports a hidden volume within the encrypted volume, and that hidden volume is impossible to detect, since it is what the outer volume sees as freespace. If I give them the outer password, I technically haven't complied with the order, since they wanted the inner password, but they have no way of knowing that there is an inner password, other than suspicion. Would I be in contempt based on their suspicion?
lol
are you kidding me? you do understand that when you "delete" a file, all you do is change the REFERENCE to it in the directory file? it doesn't actually ERASE the file.
the only way to do that is with a "purge" program.
amazingly enough, i can't tell you how many IDIOT criminals don't understand this and think some file is GONE just because they "deleted" it.
most computer nerds otoh own several wipe programs. i certainly do :)
I understand that when you trash/recycle a file the bits still exist on a hard drive until they are overwritten by another file. (More downloading can serve the same function as a purge) But the government already has those bits and they are useless to it. Perhaps when you unlock a PGP encrypted drive the deleted files also become accessible. That would obviously work to the government's advantage. I do not know if this is how PGP works.
Better - Install a key logging program on his computer before you give it back to him. The program will secretly record and store everything he types.
If he's wised up from this at all he won't fall for that.
i am aware that (at least one) researched considers this urban legend, but my computer forensics guy says it aint.
and he used to work for the feds. the feds are generally full of #$(#$( as a rule, but this guy is credible (and very good at his job).
personally, i'd want to overwrite at least as many times as is required by DOD level "wipe" programs.
there's a fine line between paranoia and caution. :)
That's a big "if." Remember, this is the idiot who encrypted his porn, but then voluntarily let the cops see it anyway.
fortunately, there's PLENTY of the former to keep us busy.
I don't think it is urban legend that magnetic traces can be read. There are disk recovery services that do this as a service. With sufficient resources they could search for traces of deleted files to try to retrieve a piece of an image to use to convict him. For that matter, given adequate resources they could break his PGP. A child porn case may not be enough of a priority to warrant the required level of investigative resources.