5 ms·

The critical question is, why haven't they charged him? It is disingenuous of them to bring up the evidence they currently have essentially in an attempt to dem

The critical question is, why haven't they charged him? It is disingenuous of them to bring up the evidence they currently have essentially in an attempt to demonize him. Their evidence is sufficient or it isn't; if it is they should charge him; if not they're demanding self-incrimination.

rayiner 10y ago
You need to distinguish between requiring the defendant to turn over incriminating evidence (which the 5th amendment does not protect), and requiring the defendant to make incriminating statements (i.e. to provide incriminating testimony). Sometimes, the act of producing evidence in response to a government request involves the defendant making implicit incriminating assertions. If the government says "produce all your cooked accounting books," handing over those documents implicitly communicates the assertions that (1) certain books exist; (2) those books are doctored; and (3) you have ownership/control over them. However, say the government asks you for your bank records. When you hand them over, you're implicitly saying "I have bank records," and "these are my bank records." That's not incriminating -- even if the bank records themselves might contain incriminating evidence. The "foregone conclusion rule," says that the act of production is non-testimonial when the incriminating facts are already known.[1] If the existence of doctored books is already known by other means, the act of producing them doesn't communicate anything to the authorities. The books themselves are obviously communicated, but the 5th amendment does not protect the underlying evidence. It protects the implied statements by the defendant about the underlying evidence. Hence the threading the needle in the opinion. They're not asking the guy to make incriminating statements about the existence of incriminating evidence. They're asking him to turn over the incriminating evidence they already know exists. [1] Note that the Court is not saying "we already know he's guilty so the 5th amendment doesn't apply."
- deleted 10y ago
  [deleted]
- olliej 10y ago
  Quite aside from anything else, can someone explain whether or not the same logic would apply to (for example) asking someone to open a safe vs. the code to open the safe. It seems like this ruling would say that failing to open the safe is functionally the same? As a gratuitously distorted example, lets say i had cooked accounting books in a spreadsheet on my computer, and they were encrypted by a random password that /i/ do not know, but have on a memory stick in a safe. It seems that logically that would be equivalent, but i also am very much not a lawyer so am perfectly willing to accept i am missing nuance of the law. Outside of the law i don't like the forgone conclusion stuff - for example, revolution period you could say hanging out with revolutionaries regularly could reasonably conclude your documents include a calendar for revolutionary meetings so you should be required to provide that information and/or information required to receive that. Obviously that's some contorted logic but i don't think it's that far removed from this. I would argue that a hash match should be sufficient, and i would be convinced that (absent other information and details) this was evidence that he's a pedo, but i can see how a lawyer could create reasonable doubt where in reality there is none (specifically referring to hashes here, nothing else). Of course i can't serve on a jury (and apparently knowing what you're talking about may be disqualifying? :-/)
  - rayiner 10y ago
    > Quite aside from anything else, can someone explain whether or not the same logic would apply to (for example) asking someone to open a safe vs. the code to open the safe. It seems like this ruling would say that failing to open the safe is functionally the same? Basically, judges don't agree on which way this scenario comes out. > Outside of the law i don't like the forgone conclusion stuff - for example, revolution period you could say hanging out with revolutionaries regularly could reasonably conclude your documents include a calendar for revolutionary meetings so you should be required to provide that information and/or information required to receive that. The "foregone conclusion" stuff is narrower than Ars makes it out to be. The gist of the 5th amendment is that the government can make a defendant do things but not transfer information.[1] Sometimes, an action can implicitly transfer information. The foregone conclusion rule just says that if the government already has the information, then the action does not additionally transfer information. In your hypothetical, the foregone conclusion rule would not apply because even if the government "could reasonably conclude" that you have a calendar, producing it would still confirm that conjecture (and thus transfer information). But if the government knows you have the calendar, however, because your sister testified that you keep a calendar of revolutionary meetings, then producing it becomes a pure action. [1] I'd actually argue that the gist of the 5th amendment is even narrower than that: the government literally can't put you on the stand to testify against yourself, or enter into evidence a coerced confession. That's it.
- xelxebar 10y ago
  Thanks for the lucid explanation. What befuddles my non-lawyer mind is that why such evidence is needed in the first place. If it's established firmly that someone has piles of illegal files, then for the sake of their incrimination, why do the files need to be produced at all? If on the other hand, the files are being requisitioned for purposes unrelated to the the defendant's current outstanding culpability, then what laws does that kind of thing fall under?
  - Consultant32452 10y ago
    If you refuse to hand over subpoenaed evidence you can be held in contempt of court which usually results in some sort of fine, but could potentially result in jail time. Note that this all occurs before your conviction, so time spent in jail for contempt does not count towards your eventual sentence.
    - mickronome 10y ago
      Yes, but why are the files needed if it is know which files the drive contains based on hashes, as thousands of hashes matching known images should be plenty to convict on ? Maybe the hashes can only tell that some drive contains the images, and the prosecutor believes it is this particular drive, and tries to avoid having to deal with that defense ? If there is evidence that the particular drive contains those images, why bother with the drive at all ? This is the part that doesn't make sense to me.
      - haikuginger 10y ago
        Because without the images, you have to lead a jury through the fundamentals necessary to make them believe, beyond a reasonable doubt, that the presence of certain strings of hexadecimal digits in a log file is conclusive evidence in its own right. Because failure to do so means that the defendant walks free. Because as long as he's in contempt, he's behind bars indefinitely, so why attach a specific term to his incarceration unnecessarily?
      - deleted 10y ago
        [deleted]
- jMyles 10y ago
  I must say I find this logic quite unconvincing. What is a confession but a piece of evidence stored in memory made of biological matter? How is it different to grant a confession where the memory is electronic rather than biological?
  - kefka 10y ago
    I see a pretty bad course of events. "Lay inside this fMRI machine for an accurate brainscan if you are lying, and image retrieval of the time in question. Or you will be put in jail until you do." And I also seem to remember a certain dead salmon who in an fMRI, showed amazing brain activity(!).
    - jMyles 10y ago
      > "Lay inside this fMRI machine for an accurate brainscan if you are lying, and image retrieval of the time in question. Or you will be put in jail until you do." Yeah, exactly. It seems to me that unless we decide that memories stored in digital media is subject to the same sorts of rights against intrusion from the state as memories stored in biological media, the scenario you describe is inevitable precisely because the line between these two types of memory will be increasingly blurred.
- justinrandoh 10y ago
  >However, say the government asks you for your bank records. When you hand them over, you're implicitly saying "I have bank records," and "these are my bank records." That's not incriminating -- even if the bank records themselves might contain incriminating evidence. Here's what I'm missing: why doesn't, in a similar vein, the government simply ask him to unlock the hard drives without any claimed assumption as to their contents?
  - rayiner 10y ago
    I suspect that's what happened. But the court gets into the whole issue with Fisher to address an argument that the defendant made. IMHO it was unnecessary to even go down that road.

rayiner 10y ago

You need to distinguish between requiring the defendant to turn over incriminating evidence (which the 5th amendment does not protect), and requiring the defendant to make incriminating statements (i.e. to provide incriminating testimony). Sometimes, the act of producing evidence in response to a government request involves the defendant making implicit incriminating assertions. If the government says "produce all your cooked accounting books," handing over those documents implicitly communicates the assertions that (1) certain books exist; (2) those books are doctored; and (3) you have ownership/control over them. However, say the government asks you for your bank records. When you hand them over, you're implicitly saying "I have bank records," and "these are my bank records." That's not incriminating -- even if the bank records themselves might contain incriminating evidence. The "foregone conclusion rule," says that the act of production is non-testimonial when the incriminating facts are already known.[1] If the existence of doctored books is already known by other means, the act of producing them doesn't communicate anything to the authorities. The books themselves are obviously communicated, but the 5th amendment does not protect the underlying evidence. It protects the implied statements by the defendant about the underlying evidence. Hence the threading the needle in the opinion. They're not asking the guy to make incriminating statements about the existence of incriminating evidence. They're asking him to turn over the incriminating evidence they already know exists. [1] Note that the Court is not saying "we already know he's guilty so the 5th amendment doesn't apply."

deleted 10y ago
[deleted]
olliej 10y ago
Quite aside from anything else, can someone explain whether or not the same logic would apply to (for example) asking someone to open a safe vs. the code to open the safe. It seems like this ruling would say that failing to open the safe is functionally the same? As a gratuitously distorted example, lets say i had cooked accounting books in a spreadsheet on my computer, and they were encrypted by a random password that /i/ do not know, but have on a memory stick in a safe. It seems that logically that would be equivalent, but i also am very much not a lawyer so am perfectly willing to accept i am missing nuance of the law. Outside of the law i don't like the forgone conclusion stuff - for example, revolution period you could say hanging out with revolutionaries regularly could reasonably conclude your documents include a calendar for revolutionary meetings so you should be required to provide that information and/or information required to receive that. Obviously that's some contorted logic but i don't think it's that far removed from this. I would argue that a hash match should be sufficient, and i would be convinced that (absent other information and details) this was evidence that he's a pedo, but i can see how a lawyer could create reasonable doubt where in reality there is none (specifically referring to hashes here, nothing else). Of course i can't serve on a jury (and apparently knowing what you're talking about may be disqualifying? :-/)
- rayiner 10y ago
  > Quite aside from anything else, can someone explain whether or not the same logic would apply to (for example) asking someone to open a safe vs. the code to open the safe. It seems like this ruling would say that failing to open the safe is functionally the same? Basically, judges don't agree on which way this scenario comes out. > Outside of the law i don't like the forgone conclusion stuff - for example, revolution period you could say hanging out with revolutionaries regularly could reasonably conclude your documents include a calendar for revolutionary meetings so you should be required to provide that information and/or information required to receive that. The "foregone conclusion" stuff is narrower than Ars makes it out to be. The gist of the 5th amendment is that the government can make a defendant do things but not transfer information.[1] Sometimes, an action can implicitly transfer information. The foregone conclusion rule just says that if the government already has the information, then the action does not additionally transfer information. In your hypothetical, the foregone conclusion rule would not apply because even if the government "could reasonably conclude" that you have a calendar, producing it would still confirm that conjecture (and thus transfer information). But if the government knows you have the calendar, however, because your sister testified that you keep a calendar of revolutionary meetings, then producing it becomes a pure action. [1] I'd actually argue that the gist of the 5th amendment is even narrower than that: the government literally can't put you on the stand to testify against yourself, or enter into evidence a coerced confession. That's it.
xelxebar 10y ago
Thanks for the lucid explanation. What befuddles my non-lawyer mind is that why such evidence is needed in the first place. If it's established firmly that someone has piles of illegal files, then for the sake of their incrimination, why do the files need to be produced at all? If on the other hand, the files are being requisitioned for purposes unrelated to the the defendant's current outstanding culpability, then what laws does that kind of thing fall under?
- Consultant32452 10y ago
  If you refuse to hand over subpoenaed evidence you can be held in contempt of court which usually results in some sort of fine, but could potentially result in jail time. Note that this all occurs before your conviction, so time spent in jail for contempt does not count towards your eventual sentence.
  - mickronome 10y ago
    Yes, but why are the files needed if it is know which files the drive contains based on hashes, as thousands of hashes matching known images should be plenty to convict on ? Maybe the hashes can only tell that some drive contains the images, and the prosecutor believes it is this particular drive, and tries to avoid having to deal with that defense ? If there is evidence that the particular drive contains those images, why bother with the drive at all ? This is the part that doesn't make sense to me.
    - haikuginger 10y ago
      Because without the images, you have to lead a jury through the fundamentals necessary to make them believe, beyond a reasonable doubt, that the presence of certain strings of hexadecimal digits in a log file is conclusive evidence in its own right. Because failure to do so means that the defendant walks free. Because as long as he's in contempt, he's behind bars indefinitely, so why attach a specific term to his incarceration unnecessarily?
    - deleted 10y ago
      [deleted]
jMyles 10y ago
I must say I find this logic quite unconvincing. What is a confession but a piece of evidence stored in memory made of biological matter? How is it different to grant a confession where the memory is electronic rather than biological?
- kefka 10y ago
  I see a pretty bad course of events. "Lay inside this fMRI machine for an accurate brainscan if you are lying, and image retrieval of the time in question. Or you will be put in jail until you do." And I also seem to remember a certain dead salmon who in an fMRI, showed amazing brain activity(!).
  - jMyles 10y ago
    > "Lay inside this fMRI machine for an accurate brainscan if you are lying, and image retrieval of the time in question. Or you will be put in jail until you do." Yeah, exactly. It seems to me that unless we decide that memories stored in digital media is subject to the same sorts of rights against intrusion from the state as memories stored in biological media, the scenario you describe is inevitable precisely because the line between these two types of memory will be increasingly blurred.
justinrandoh 10y ago
>However, say the government asks you for your bank records. When you hand them over, you're implicitly saying "I have bank records," and "these are my bank records." That's not incriminating -- even if the bank records themselves might contain incriminating evidence. Here's what I'm missing: why doesn't, in a similar vein, the government simply ask him to unlock the hard drives without any claimed assumption as to their contents?
- rayiner 10y ago
  I suspect that's what happened. But the court gets into the whole issue with Fisher to address an argument that the defendant made. IMHO it was unnecessary to even go down that road.