5 ms·

"Evidence" isn't just "the parts of the evidence the prosecution wanted to use". How is the defense supposed to cross-examine the person who gathered the evide

"Evidence" isn't just "the parts of the evidence the prosecution wanted to use". How is the defense supposed to cross-examine the person who gathered the evidence when they can't investigate the circumstances under which it was gathered? How are they supposed to make a cogent argument that it was not a properly issued warrant unless they can see it? How are they supposed to argue that even if the the warrant was proper, the evidence gathered was not under the scope of the warrant? How are they supposed to get access to other exculpatory evidence that would have been collected under the warrant, that the prosecution declined to use?

tptacek 11y ago
I understand the argument, but is that what actually happened here? My understanding is that the one thing the defense doesn't have is the whole justification for entering the defendant's personal space in the first place. I could be misreading!
- fiatmoney 11y ago
  It sure looks like you are. "Gartenlaub wants to see the warrant in his case so he can challenge it as based on false information and therefore invalid." According to the article the warrant itself and the filings in support of it are unavailable to the defense. That is essential to making arguments on the legality of the warrant in the first place, the scope of the evidence gathered to the warrant, and factual arguments derived from the process of executing the warrant. (Example! The warrant included Device X, because Secret FBI Source Y said it had classified information. The device was searched, but contained no such information; in fact it had been completely wiped. This lets the defense argue that the FBI knew the source was unreliable, or that the evidence found was exculpatory (eg, evidence the target had been hacked to plant the child porn). None of this is available to the defense.) The government says that the evidence gathered in the warrant has been made available. They could very well be lying, or simply mistaken, and it's impossible to investigate. Regardless, it is only part of the issue. The process here is that the judge looked at it the government's arguments, without involving the defense, and said "yeah, it looks good, trust me / them". (Which, incidentally, is completely contrary to the notion of the judge as a neutral arbiter rather than an inquisitor working for the government. Not surprising when the FISA court itself essentially operates in that capacity.)
  - tptacek 11y ago
    Sorry, I think I'm just being imprecise. I understand the nature of his argument: he'd like to challenge the warrant to get the CP evidence excluded. He can't, because the warrant is secret; his CP criminal trial judge validated it, but in a normal case, he'd have the chance to evaluate himself. What I perceived you to have been claiming was that the defendant additionally doesn't know the actual provenance of the evidence. Which computer did it come from? How does he know the FBI didn't simply make it up? It's that latter claim that I'm pushing back on.
    - fiatmoney 11y ago
      The warrant establishes the provenance, it's the whole point!
      - tptacek 11y ago
        I feel like we're about to argue about the meaning of the word "provenance". I meant it as "where the evidence came from". You mean it as "the legal authority required to collect it". Both uses are valid, but I meant the former.
        fiatmoney 11y ago
        The law is not being kept secret. The facts supporting the issuance of the warrant and the circumstances of its execution are. That is the causal definition of "where the evidence came from". That in and of itself is evidence. "I first heard about the defendant's shenanigans when I was attending my support group for compulsive liars, from Joe, the defendant's bitter ex-husband. As I recall he was covered in blood at the time." That is a factual circumstance related to the issuance of the warrant that would be relevant to the case, not just the issuance of the warrant itself. This is not a difficult distinction, it's one you're trying for whatever reason to ignore.

tptacek 11y ago

I understand the argument, but is that what actually happened here? My understanding is that the one thing the defense doesn't have is the whole justification for entering the defendant's personal space in the first place. I could be misreading!

fiatmoney 11y ago
It sure looks like you are. "Gartenlaub wants to see the warrant in his case so he can challenge it as based on false information and therefore invalid." According to the article the warrant itself and the filings in support of it are unavailable to the defense. That is essential to making arguments on the legality of the warrant in the first place, the scope of the evidence gathered to the warrant, and factual arguments derived from the process of executing the warrant. (Example! The warrant included Device X, because Secret FBI Source Y said it had classified information. The device was searched, but contained no such information; in fact it had been completely wiped. This lets the defense argue that the FBI knew the source was unreliable, or that the evidence found was exculpatory (eg, evidence the target had been hacked to plant the child porn). None of this is available to the defense.) The government says that the evidence gathered in the warrant has been made available. They could very well be lying, or simply mistaken, and it's impossible to investigate. Regardless, it is only part of the issue. The process here is that the judge looked at it the government's arguments, without involving the defense, and said "yeah, it looks good, trust me / them". (Which, incidentally, is completely contrary to the notion of the judge as a neutral arbiter rather than an inquisitor working for the government. Not surprising when the FISA court itself essentially operates in that capacity.)
- tptacek 11y ago
  Sorry, I think I'm just being imprecise. I understand the nature of his argument: he'd like to challenge the warrant to get the CP evidence excluded. He can't, because the warrant is secret; his CP criminal trial judge validated it, but in a normal case, he'd have the chance to evaluate himself. What I perceived you to have been claiming was that the defendant additionally doesn't know the actual provenance of the evidence. Which computer did it come from? How does he know the FBI didn't simply make it up? It's that latter claim that I'm pushing back on.
  - fiatmoney 11y ago
    The warrant establishes the provenance, it's the whole point!
    - tptacek 11y ago
      I feel like we're about to argue about the meaning of the word "provenance". I meant it as "where the evidence came from". You mean it as "the legal authority required to collect it". Both uses are valid, but I meant the former.
      - fiatmoney 11y ago
        The law is not being kept secret. The facts supporting the issuance of the warrant and the circumstances of its execution are. That is the causal definition of "where the evidence came from". That in and of itself is evidence. "I first heard about the defendant's shenanigans when I was attending my support group for compulsive liars, from Joe, the defendant's bitter ex-husband. As I recall he was covered in blood at the time." That is a factual circumstance related to the issuance of the warrant that would be relevant to the case, not just the issuance of the warrant itself. This is not a difficult distinction, it's one you're trying for whatever reason to ignore.