It's tricky. The prosecution cannot call you as a witness. The defense can call you as a witness, but any questions he asks you, and any statements that you make, can then be impeached or questions by the prosecution.
However, (to construct an absurd circumstance to highlight the idea) if you get on the stand, and speak as to your alibi for say Crime A a non-homicide, and the prosecution got up and asked you were you hid the body from Crime B, a homicide, then your lawyer could object because the prosecution has exceeded the scope of examination. (The cross-examination can only touch on matters that relate to the original examination.) But this can be interpreted widely sometimes, and prosecutors can get some wiggle room.
However, yes, once you are on the stand, sworn in and testifying, you have to answer all questions that comply with court rules.
Probably, only the third amendment has truly withstood the test of time.
There was a case that attempted to incorporate the 3rd amendment to the states. A bunch of prison guards were on strike, and the state kicked them out of their dorms, and brought in the national guard. The ruling failed to incorporate the third amendment, as the court found that because the prison guards were offered housing on condition of employment, that by being on strike they forfeited their residency, and thus there was no need to consider the question of a violation of the 3rd amendment.
But in any case, don't think that the 3rd amendment hasn't come up... it's just kind of weird for us to think about quartering soldiers is all... basically it's obsolete... like an amendment requiring that the government cannot interfere with the parking of horses.... who would that even impact anymore?
(if you're caught transporting large amounts of cash, it'll be seized and you'll never see it again, even though this is plainly in violation of the 4A)
And... they would require evidence that you were transporting that large amount of cash, and if they caught you then either they would have had a warrant to find it, which is perfectly within the terms of the 4A, or they caught sight of the evidence unintentionally, and "plain view" comes to play, and it is now within the terms of the 4A...
Your arguments are weak... especially considering that freedom to peacefully assemble is regulated as well. The courts have also ruled the regulation with the intent to deny a right results in a violation of that right, specifically in terms of the 2nd amendment as well.
I didn't say that unconstitutional statutory law cannot be passed. I said that it cannot overrule the constitution, and thus is null and void.... I'm going to note here as well, that doesn't mean that the executive won't enforce an unconstitutional statutory law either, but you're perfectly within your first amendment rights to petition for a redress of your grievance with the courts.
For instance, Rosa Parks committed a crime by not sitting at the back of the bus. She was arrested and sent to jail. Civil disobedience is one of the fastest ways to get a legal argument for unconstitutionality before the court, but it does not come free, and it does not exempt you from suffering as a result of breaking the law. However, if the courts do eventually agree with you, you can seek compensation for being punished for violating a law that was null and void. But you will still have to suffer harm at first.
"I lost it". Now the prosecution needs to prove you didn't lose it, just like they'd have to prove you didn't lose a physical key (to a safe, for instance).
As noted elsewhere, they don't have to prove that you didn't lose it. The judge just has to be convinced that you didn't lose it, or have a way to recover it. At that point, you hold the key to your own jail, and they can hold you indefinitely or to the limit of whatever civil contempt maximums apply for that jurisdiction.
properly cataloged and entered into the court records, and I don't see how that could be achieved without the pass code.
"One, hard-drive, 1 Terabytes in size, serial number XXX173818EXAMPLE, contents encrypted."
There. Cataloged and entered into police evidence. (You don't have to submit all evidence into court records, and some rulings can require that some evidence cannot be entered into evidence during a trial.)
Assuming you don't actually _know_ any national secrets, a CSS decryption key would be just as good. "I would be breaking the law if I gave you a copy of that key".
Law of necessity. You're allowed to break some laws in the execution of a warrant. Namely, police can basically commit burglary and theft to obtain evidence, except that they have a valid court order permitting their action.
...and then they will restore from backup and put you back at the keyboard.
The better "duress" password will decrypt alternate, non-incriminating data.
Or possibly alternate, semi-incriminating data that will show you had something plausibly private to hide like photos of you trying on underwear, or something else that was embarassing, but nothing that would convict you of a crime.
Except that you were 16 in the photos, and now you're guilty of making child pornography...
What if the key itself is the confession to a crime?
As numerous people have pointed out, but I will do so much more simply.
They don't care about your password, they care about the data that it unlocks, so what your password is is immaterial. The case is not asking for the password to unlock the data, but rather an unencrypted version of the data.
You can claim you lost some physical keys. The prosecution can only disprove that by finding the keys, I would think. But with encryption, you just have to claim you "forgot" the password. How does the prosecution disprove that? We don't have brain scanners yet (thank God).
Prosecution doesn't have to prove that you do have the keys. It's part of what's broken with the civil contempt of court... The judge usually just has to not believe you that you don't have the keys.
encrypt it with drm then if they try to force you to decrypt it they would be forcing you to brake the dmca. thus decrypting it would itself be a fellony for you or them to decrypt it (stopping attempts by them to brute force or exploit a flaw in the drm scheme). i am fairly sure that you can not be ordered to break the law even by the court. thus you are safe
Circumventing DRM is actually legal if you have a court order. Just like breaking into someone's house and planting bugs, or taking items.
In court you are required to tell the truth aren't you?
Only while under oath. You are not required to tell the truth during a police investigation, but any lie that you tell them can impeach your credibility later in court. And since sometimes you telling the truth can be impeached by the testimony of another person, your credibility can be damaged in court later regardless of the truth of your statements... so don't talk to the police except to demand a lawyer.
So if you lie about robbing the store but later confess and plead guilty, can they get you for lying in a court of law too??
Only if you testify in court that you did not rob the store. But perjury can actually be somewhat difficult to prove, so normally as part of a confession and guilty plea, you would get a pass for any false statements you made already.
NEVER talk to police.... be it a statement or password
Adding one thing mentioned above, but you have to explicitly enact your right to remain silent. So, there is actually one thing that you should say to the police without a lawyer, and ONLY one thing: "I want a lawyer."
This will drag out your interrogation, during which time they may have enough cause to detain you, but you're better off spending a day or weekend in jail than participating in a police interview without a lawyer.
Remember, kids: if you have to do something illegal, do not write it down. Anywhere. Once you do, it's no longer something contained solely in your mind and nowhere else, and it is probably subject to subpoena, which will be deemed eminently legal. Don't put it in your diary. Don't tell anyone (you'll lose your expectation of privacy). If you must break the law, never ever speak about it. Do it and move on.
It is long and well accepted legal fact in the USA that a court can subpoena a diary. You are indeed correct. Never write anything incriminating ever.
well to decrypted the drive means you have to provide testimony of the PASSWORD to decrypt the drive, which then you are providing testimony against yourself.
Your argument does not apply as your definition of "testimony" is inaccurate.
Simpler solution: When they ask if it's your laptop, don't answer. Don't shrug, don't nod, don't wave your hand. Just...take a nap until your lawyer gets there.
In short, plead the 5th amendment at the stage where they are asking if you have the key (a question that could be phrased in many ways, so as always it comes back to DON'T TALK TO THE POLICE).
Actually, recent case law has established that you have to explicitly state your right to be silent, and have a lawyer present. Otherwise, they are under no obligation to assume that you have enacted your 5th amendment rights.
The first thing you do when a cop sits you down for an interview is say, "I want a lawyer." And that is all that you should say. At that point, they can no longer talk with you until a lawyer is there. If you just shut up, then they can keep talking and asking you questions all day long.
No, that's only for civil contempt, not criminal contempt... you can be charged with civil contempt during the process of a criminal case, and you can be charged with criminal contempt during the process of a civil case.
The 21st is intact for now, but MAAD is working hard to get rid of it.
On the other hand, the Third is doing great. When's the last time you had a soldier quartered in your home?
MAAD doesn't need the 21st amendment to be repealed in order to return the country to prohibition. It simply repealed the prohibition, but didn't actually declare alcohol legal. As such, the federal government, state governments, and depending on the state's laws county and local governments can actually ban alcohol.
The antitrust case [wikipedia.org] against Microsoft, for instance, was based largely on email correspondence that could well have been encrypted before the court ordered them disclosed -- and if such protection actually existed, would have certainly been encrypted if only to trigger that legal protection.
In fact, there are emails there that say, "Ooo, this might be getting murky, let's CC a lawyer, then it's protected by attorney-client privilege!" They didn't understand that you can't just invoke attorney-client privilege by including a lawyer in the conversation, you have to be actively seeking legal advice for your actions to gain privilege.
In the same way, priest-confessor privilege is only protected as long as you're seeking penitence. If you confess a crime to a priest with no intent to seek spiritual absolution (say, in the lunch line), then the priest is perfectly allowed to divulge and even be forced to divulge your confession.
That rarely happens, at least in the United States.
And even if it does, in many cases you will be in a better facility than a maximum-security prison, depending on the state and the crime you are accused of. You will likely eventually be released, and you will have not been convicted of the crime, therefore retaining your civil rights (if you were accused of a felony).
That, or eventually they crack the crypto.
Happens more often than you would think. And in the case of contempt of court, since the judge is actually a witness to the offense of contempt of court, your detention does not require a trial.
Wouldn't this be a 4th amendment issue instead of a 5th amendment?
If you are compelled to hand over the password it's pretty much the same as handing over physical keys.
I'd attack this on grounds of search and seizure, not self incrimination.
Yeah, I see the 5th amendment arising if they ask you to translate a language that only you speak (as you would have to give testimony to the content of the message). The 4th amendment would be them subpoenaing you to translate a language that numerous people speak... ("Higher a damn translator, I don't have to cooperate with your search, I just can't interfere.")
Had an issue once, and I turned over a notebook full of well... notes, as evidence to a lawyer. The English didn't need translation, and I translated the German for them, because they could just translate it anyways (better to unlock your door for a police search than have them bust down the door.) but my own private language? I told them that was confidential, and I wouldn't translate it until I were advised by a lawyer representing my interests to do so.
Ah, but incriminating evidence of what? She might be completely innocent of what she's charged with but guilty of something else. In fact, she probably is, and so are you.
Fortunately, warrants must state clearly what they intend to fine, and if they find incriminating evidence of another crime, they have to obtain a separate warrant to return for that evidence.
This is a little different though, when they're in your house and making a sweep, rather than holding onto your files, where they can take their time.
the NDAA killed the first, fourth, and sixth amendments.
The NDAA provision is a statutory law, it CANNOT overrule any amendment. If they are in conflict, then the NDAA loses.
And after that, WTF? How did it kill the first amendment? Did it establish a relgion? Prohibit the free exercise of religion? Abridge the freedom of speech, or press? Or our right to peacefully assemble? Or did it eliminate our ability to petition the government for a redress of our grievances?
The second amendment has been dead for decades.
WTF? The Supreme court just recently ruled that the District of Columbia, and later a state jurisdiction as well are unable to effect regulation of gun ownership in a way that prohibits the ownership of a gun by the general citizenship. No less, the ruling also enforced that regulation of gun ownership cannot require that the gun be dismantled, or otherwise stored in a non-functional state.
And before anyone brings up the dissenting opinions in those cases, even the dissenting opinions stated that the 2nd amendment CLEARLY applies to all citizens, and not just to militia forces.
I think only the 21st amendment is safe in the entire constitution.
Your apocalyptic rhetoric is unnecessary hyperbole.
Slashdot Mirror
"You are not required to tell the truth during a police investigation,"
What was it that Martha Stewart actually went to prison for? Lying to investigators, I believe.
She went to jail because they proved that she lied to them.
you want fucked up legal system? Come to Britain!
Dude, you shouldn't be committing libel like that... you live in the UK... ;)
It's tricky. The prosecution cannot call you as a witness. The defense can call you as a witness, but any questions he asks you, and any statements that you make, can then be impeached or questions by the prosecution.
However, (to construct an absurd circumstance to highlight the idea) if you get on the stand, and speak as to your alibi for say Crime A a non-homicide, and the prosecution got up and asked you were you hid the body from Crime B, a homicide, then your lawyer could object because the prosecution has exceeded the scope of examination. (The cross-examination can only touch on matters that relate to the original examination.) But this can be interpreted widely sometimes, and prosecutors can get some wiggle room.
However, yes, once you are on the stand, sworn in and testifying, you have to answer all questions that comply with court rules.
Probably, only the third amendment has truly withstood the test of time.
There was a case that attempted to incorporate the 3rd amendment to the states. A bunch of prison guards were on strike, and the state kicked them out of their dorms, and brought in the national guard. The ruling failed to incorporate the third amendment, as the court found that because the prison guards were offered housing on condition of employment, that by being on strike they forfeited their residency, and thus there was no need to consider the question of a violation of the 3rd amendment.
But in any case, don't think that the 3rd amendment hasn't come up... it's just kind of weird for us to think about quartering soldiers is all... basically it's obsolete... like an amendment requiring that the government cannot interfere with the parking of horses.... who would that even impact anymore?
(if you're caught transporting large amounts of cash, it'll be seized and you'll never see it again, even though this is plainly in violation of the 4A)
And... they would require evidence that you were transporting that large amount of cash, and if they caught you then either they would have had a warrant to find it, which is perfectly within the terms of the 4A, or they caught sight of the evidence unintentionally, and "plain view" comes to play, and it is now within the terms of the 4A...
Your arguments are weak... especially considering that freedom to peacefully assemble is regulated as well. The courts have also ruled the regulation with the intent to deny a right results in a violation of that right, specifically in terms of the 2nd amendment as well.
so remind us all how PATRIOT got passed??
I didn't say that unconstitutional statutory law cannot be passed. I said that it cannot overrule the constitution, and thus is null and void. ... I'm going to note here as well, that doesn't mean that the executive won't enforce an unconstitutional statutory law either, but you're perfectly within your first amendment rights to petition for a redress of your grievance with the courts.
For instance, Rosa Parks committed a crime by not sitting at the back of the bus. She was arrested and sent to jail. Civil disobedience is one of the fastest ways to get a legal argument for unconstitutionality before the court, but it does not come free, and it does not exempt you from suffering as a result of breaking the law. However, if the courts do eventually agree with you, you can seek compensation for being punished for violating a law that was null and void. But you will still have to suffer harm at first.
"I lost it". Now the prosecution needs to prove you didn't lose it, just like they'd have to prove you didn't lose a physical key (to a safe, for instance).
As noted elsewhere, they don't have to prove that you didn't lose it. The judge just has to be convinced that you didn't lose it, or have a way to recover it. At that point, you hold the key to your own jail, and they can hold you indefinitely or to the limit of whatever civil contempt maximums apply for that jurisdiction.
properly cataloged and entered into the court records, and I don't see how that could be achieved without the pass code.
"One, hard-drive, 1 Terabytes in size, serial number XXX173818EXAMPLE, contents encrypted."
There. Cataloged and entered into police evidence. (You don't have to submit all evidence into court records, and some rulings can require that some evidence cannot be entered into evidence during a trial.)
Assuming you don't actually _know_ any national secrets, a CSS decryption key would be just as good. "I would be breaking the law if I gave you a copy of that key".
Law of necessity. You're allowed to break some laws in the execution of a warrant. Namely, police can basically commit burglary and theft to obtain evidence, except that they have a valid court order permitting their action.
...and then they will restore from backup and put you back at the keyboard.
The better "duress" password will decrypt alternate, non-incriminating data.
Or possibly alternate, semi-incriminating data that will show you had something plausibly private to hide like photos of you trying on underwear, or something else that was embarassing, but nothing that would convict you of a crime.
Except that you were 16 in the photos, and now you're guilty of making child pornography...
What if the key itself is the confession to a crime?
As numerous people have pointed out, but I will do so much more simply.
They don't care about your password, they care about the data that it unlocks, so what your password is is immaterial. The case is not asking for the password to unlock the data, but rather an unencrypted version of the data.
You can claim you lost some physical keys. The prosecution can only disprove that by finding the keys, I would think. But with encryption, you just have to claim you "forgot" the password. How does the prosecution disprove that? We don't have brain scanners yet (thank God).
Prosecution doesn't have to prove that you do have the keys. It's part of what's broken with the civil contempt of court... The judge usually just has to not believe you that you don't have the keys.
encrypt it with drm then if they try to force you to decrypt it they would be forcing you to brake the dmca. thus decrypting it would itself be a fellony for you or them to decrypt it (stopping attempts by them to brute force or exploit a flaw in the drm scheme). i am fairly sure that you can not be ordered to break the law even by the court. thus you are safe
Circumventing DRM is actually legal if you have a court order. Just like breaking into someone's house and planting bugs, or taking items.
In court you are required to tell the truth aren't you?
Only while under oath. You are not required to tell the truth during a police investigation, but any lie that you tell them can impeach your credibility later in court. And since sometimes you telling the truth can be impeached by the testimony of another person, your credibility can be damaged in court later regardless of the truth of your statements... so don't talk to the police except to demand a lawyer.
So if you lie about robbing the store but later confess and plead guilty, can they get you for lying in a court of law too??
Only if you testify in court that you did not rob the store. But perjury can actually be somewhat difficult to prove, so normally as part of a confession and guilty plea, you would get a pass for any false statements you made already.
NEVER talk to police.... be it a statement or password
Adding one thing mentioned above, but you have to explicitly enact your right to remain silent. So, there is actually one thing that you should say to the police without a lawyer, and ONLY one thing: "I want a lawyer."
This will drag out your interrogation, during which time they may have enough cause to detain you, but you're better off spending a day or weekend in jail than participating in a police interview without a lawyer.
Remember, kids: if you have to do something illegal, do not write it down. Anywhere. Once you do, it's no longer something contained solely in your mind and nowhere else, and it is probably subject to subpoena, which will be deemed eminently legal. Don't put it in your diary. Don't tell anyone (you'll lose your expectation of privacy). If you must break the law, never ever speak about it. Do it and move on.
It is long and well accepted legal fact in the USA that a court can subpoena a diary. You are indeed correct. Never write anything incriminating ever.
well to decrypted the drive means you have to provide testimony of the PASSWORD to decrypt the drive, which then you are providing testimony against yourself.
Your argument does not apply as your definition of "testimony" is inaccurate.
Simpler solution: When they ask if it's your laptop, don't answer. Don't shrug, don't nod, don't wave your hand. Just...take a nap until your lawyer gets there.
In short, plead the 5th amendment at the stage where they are asking if you have the key (a question that could be phrased in many ways, so as always it comes back to DON'T TALK TO THE POLICE).
Actually, recent case law has established that you have to explicitly state your right to be silent, and have a lawyer present. Otherwise, they are under no obligation to assume that you have enacted your 5th amendment rights.
The first thing you do when a cop sits you down for an interview is say, "I want a lawyer." And that is all that you should say. At that point, they can no longer talk with you until a lawyer is there. If you just shut up, then they can keep talking and asking you questions all day long.
That's only in civil cases, not criminal cases.
No, that's only for civil contempt, not criminal contempt... you can be charged with civil contempt during the process of a criminal case, and you can be charged with criminal contempt during the process of a civil case.
The 21st is intact for now, but MAAD is working hard to get rid of it.
On the other hand, the Third is doing great. When's the last time you had a soldier quartered in your home?
MAAD doesn't need the 21st amendment to be repealed in order to return the country to prohibition. It simply repealed the prohibition, but didn't actually declare alcohol legal. As such, the federal government, state governments, and depending on the state's laws county and local governments can actually ban alcohol.
The antitrust case [wikipedia.org] against Microsoft, for instance, was based largely on email correspondence that could well have been encrypted before the court ordered them disclosed -- and if such protection actually existed, would have certainly been encrypted if only to trigger that legal protection.
In fact, there are emails there that say, "Ooo, this might be getting murky, let's CC a lawyer, then it's protected by attorney-client privilege!" They didn't understand that you can't just invoke attorney-client privilege by including a lawyer in the conversation, you have to be actively seeking legal advice for your actions to gain privilege.
In the same way, priest-confessor privilege is only protected as long as you're seeking penitence. If you confess a crime to a priest with no intent to seek spiritual absolution (say, in the lunch line), then the priest is perfectly allowed to divulge and even be forced to divulge your confession.
That rarely happens, at least in the United States.
And even if it does, in many cases you will be in a better facility than a maximum-security prison, depending on the state and the crime you are accused of. You will likely eventually be released, and you will have not been convicted of the crime, therefore retaining your civil rights (if you were accused of a felony).
That, or eventually they crack the crypto.
Happens more often than you would think. And in the case of contempt of court, since the judge is actually a witness to the offense of contempt of court, your detention does not require a trial.
Wouldn't this be a 4th amendment issue instead of a 5th amendment?
If you are compelled to hand over the password it's pretty much the same as handing over physical keys.
I'd attack this on grounds of search and seizure, not self incrimination.
Yeah, I see the 5th amendment arising if they ask you to translate a language that only you speak (as you would have to give testimony to the content of the message). The 4th amendment would be them subpoenaing you to translate a language that numerous people speak... ("Higher a damn translator, I don't have to cooperate with your search, I just can't interfere.")
Had an issue once, and I turned over a notebook full of well... notes, as evidence to a lawyer. The English didn't need translation, and I translated the German for them, because they could just translate it anyways (better to unlock your door for a police search than have them bust down the door.) but my own private language? I told them that was confidential, and I wouldn't translate it until I were advised by a lawyer representing my interests to do so.
Ah, but incriminating evidence of what? She might be completely innocent of what she's charged with but guilty of something else. In fact, she probably is, and so are you.
Fortunately, warrants must state clearly what they intend to fine, and if they find incriminating evidence of another crime, they have to obtain a separate warrant to return for that evidence.
This is a little different though, when they're in your house and making a sweep, rather than holding onto your files, where they can take their time.
the NDAA killed the first, fourth, and sixth amendments.
The NDAA provision is a statutory law, it CANNOT overrule any amendment. If they are in conflict, then the NDAA loses.
And after that, WTF? How did it kill the first amendment? Did it establish a relgion? Prohibit the free exercise of religion? Abridge the freedom of speech, or press? Or our right to peacefully assemble? Or did it eliminate our ability to petition the government for a redress of our grievances?
The second amendment has been dead for decades.
WTF? The Supreme court just recently ruled that the District of Columbia, and later a state jurisdiction as well are unable to effect regulation of gun ownership in a way that prohibits the ownership of a gun by the general citizenship. No less, the ruling also enforced that regulation of gun ownership cannot require that the gun be dismantled, or otherwise stored in a non-functional state.
And before anyone brings up the dissenting opinions in those cases, even the dissenting opinions stated that the 2nd amendment CLEARLY applies to all citizens, and not just to militia forces.
I think only the 21st amendment is safe in the entire constitution.
Your apocalyptic rhetoric is unnecessary hyperbole.