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> If you plead the Fifth, that's basically an admission that you know the password. Is this your opinion or from the article?

ams6110 8y ago
Remaining silent is (in the USA) evidence of nothing. The burden of proof is on the prosecution. Actually pleading the fifth, to a specific question, may have different implications. IANAL.
- mirimir 8y ago
  Yes, "[r]emaining silent is (in the USA) evidence of nothing", but only regarding the facts of the case. But it can be evidence of contempt, and that can put you in jail. And because each refusal to answer is an additional act of contempt, there's effectively no limit to jail time. You're stuck in a contempt-of-court loop.
mirimir 8y ago
It's my own opinion. I mean, isn't it obvious? In what circumstances, where you actually don't know something, would you plead the Fifth? Would you do that, just as a matter of principle, just because they're asking for something that they have no right to ask? That seems like asking for trouble. I do understand the intent of the Fifth Amendment. To protect defendants from incriminating themselves. And, I believe, to forestall the use of torture. But now, regarding passwords and access credentials, the Fifth is becoming unworkable. I mean, that Philly ex-cop is still in jail for contempt. And perhaps he actually has forgotten the password to his Apple storage device.
- turc1656 8y ago
  First, you can't legally take the fifth just because they are asking something they "have no right to ask". You can only legally take the 5th to prevent possible implication. You also only need to worry about the 5th during certain scenarios. Most of the time you can just refuse to speak. But if you've actually been charge and decided to take the stand and start to answer questions, you have waived your fifth amendment right because that would inhibit the cross-examination's questions. "I mean, isn't it obvious?" That's a common misconception about the 5th amendment. In fact the US Supreme Court has said - "One of the Fifth Amendment's basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances." Case in point: Detective: "Do you know the victim?" Suspect: "Yeah, we've crossed paths a few times before - mutual friends" Detective: "Do you like him?" Suspect: "Not especially. He always seemed kind of arrogant." Detective: "Where were you Friday night?" Suspect: "I went out with a few friends to the Irish pub at the corner of 7th" Detective: "That's interesting because his body was found about a mile from there. And the body was located roughly halfway between that pub and your apartment." Oops. Now you're screwed. You've confirmed your knew the person, didn't like them, and was in the area of the murder on the night it occurred. And your language even uses the past tense ("seemed kind of arrogant"). All of this would be used against you.
  - mirimir 8y ago
    Sure, you can refuse to speak during police questioning. However, if you're charged, you will asked to take the stand, and perhaps be deposed. I'm not sure that you can keep refusing to speak, without facing contempt charges, unless you plead the Fifth. But IANAL, so ??? My "isn't it obvious" comment was not about the innocent. But rather about someone who is arguably guilty, and knows it, but doesn't want to give that away.
    - turc1656 8y ago
      Not sure if you live in the US or not, but in the US you are never required to be deposed or take the stand if you are the person being charged. A person charged with a crime can never be forced to take the stand at all. If they choose to do so, they make that choice knowing that they are waiving their fifth amendment rights and can not take the fifth as that would hinder the right of the prosecution to cross-examine them. If a person is not the one being charged with the crime they can be required to appear in court and provide testimony but if during the course of testimony they would be giving an answer that exposes any illegal activity on their part, they can take the fifth. A good example of this is is someone witnessed a crime but they were buying drugs at the time when they happened to witness it and they were questioned about why they were at that location at that time and what they were doing there. Answering that question would force an admission of a felony on their part and would expose them to charges so they can legally refuse to answer by citing the fifth amendment. A lot of times this is rectified by being granted immunity in return for testimony since the criminal activity on the part of the person testifying is not usually of significance to the prosecution.
      - mirimir 8y ago
        OK, but what about that ex Philly cop who's been in jail for a couple years, for contempt, for refusing to provide a device passphrase? His actual trial is basically on hold, until he answers. Unless the Supreme Court intervenes, anyway.
        8y ago

ams6110 8y ago

Remaining silent is (in the USA) evidence of nothing. The burden of proof is on the prosecution. Actually pleading the fifth, to a specific question, may have different implications. IANAL.

mirimir 8y ago
Yes, "[r]emaining silent is (in the USA) evidence of nothing", but only regarding the facts of the case. But it can be evidence of contempt, and that can put you in jail. And because each refusal to answer is an additional act of contempt, there's effectively no limit to jail time. You're stuck in a contempt-of-court loop.

mirimir 8y ago

It's my own opinion. I mean, isn't it obvious? In what circumstances, where you actually don't know something, would you plead the Fifth? Would you do that, just as a matter of principle, just because they're asking for something that they have no right to ask? That seems like asking for trouble. I do understand the intent of the Fifth Amendment. To protect defendants from incriminating themselves. And, I believe, to forestall the use of torture. But now, regarding passwords and access credentials, the Fifth is becoming unworkable. I mean, that Philly ex-cop is still in jail for contempt. And perhaps he actually has forgotten the password to his Apple storage device.

turc1656 8y ago
First, you can't legally take the fifth just because they are asking something they "have no right to ask". You can only legally take the 5th to prevent possible implication. You also only need to worry about the 5th during certain scenarios. Most of the time you can just refuse to speak. But if you've actually been charge and decided to take the stand and start to answer questions, you have waived your fifth amendment right because that would inhibit the cross-examination's questions. "I mean, isn't it obvious?" That's a common misconception about the 5th amendment. In fact the US Supreme Court has said - "One of the Fifth Amendment's basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances." Case in point: Detective: "Do you know the victim?" Suspect: "Yeah, we've crossed paths a few times before - mutual friends" Detective: "Do you like him?" Suspect: "Not especially. He always seemed kind of arrogant." Detective: "Where were you Friday night?" Suspect: "I went out with a few friends to the Irish pub at the corner of 7th" Detective: "That's interesting because his body was found about a mile from there. And the body was located roughly halfway between that pub and your apartment." Oops. Now you're screwed. You've confirmed your knew the person, didn't like them, and was in the area of the murder on the night it occurred. And your language even uses the past tense ("seemed kind of arrogant"). All of this would be used against you.
- mirimir 8y ago
  Sure, you can refuse to speak during police questioning. However, if you're charged, you will asked to take the stand, and perhaps be deposed. I'm not sure that you can keep refusing to speak, without facing contempt charges, unless you plead the Fifth. But IANAL, so ??? My "isn't it obvious" comment was not about the innocent. But rather about someone who is arguably guilty, and knows it, but doesn't want to give that away.
  - turc1656 8y ago
    Not sure if you live in the US or not, but in the US you are never required to be deposed or take the stand if you are the person being charged. A person charged with a crime can never be forced to take the stand at all. If they choose to do so, they make that choice knowing that they are waiving their fifth amendment rights and can not take the fifth as that would hinder the right of the prosecution to cross-examine them. If a person is not the one being charged with the crime they can be required to appear in court and provide testimony but if during the course of testimony they would be giving an answer that exposes any illegal activity on their part, they can take the fifth. A good example of this is is someone witnessed a crime but they were buying drugs at the time when they happened to witness it and they were questioned about why they were at that location at that time and what they were doing there. Answering that question would force an admission of a felony on their part and would expose them to charges so they can legally refuse to answer by citing the fifth amendment. A lot of times this is rectified by being granted immunity in return for testimony since the criminal activity on the part of the person testifying is not usually of significance to the prosecution.
    - mirimir 8y ago
      OK, but what about that ex Philly cop who's been in jail for a couple years, for contempt, for refusing to provide a device passphrase? His actual trial is basically on hold, until he answers. Unless the Supreme Court intervenes, anyway.
      - 8y ago