Defendant ordered to decrypt laptop by Judge

I don't think this would stand up in supreme court. While the contents might be evidence, its up to the authorities to decrypt it?

The defendant has the right not to incriminate his or herself. I don't think that right is waved. Pretty much like they can't force you to be a witness and say you did it.

One simple reason why she couldn't decrypt the hard drive is that she forgot the password, no? Due to heavy distress, caused by the whole situation, of course...

People forget passwords all the time, I don't know how the court can be 100% sure that she is lying.

No matter what amendment you can actually be forced to cooperate depending on the case.

Hopefully for her she made a plausible deniability partition as well.

Truecrypt rocks!

That is awesome! Didn't know TrueCrypt offered that feature.

That's interesting.

So what can she be charged with for refusing, contempt of court? Isn't she already under arrest? Ha, ha, ha!! If it gets to the supreme court, aren't these the people that said money is speech and that corporations are people? Although the decision about GPS tracking is a surprise.

I commented in the other thread about this or similar case.
I compare the being forced to give the password to a person being forced to give a DNA sample. This is done on a regular basis. And what is that but testifing against ones' self ?

I actually think the I forgot the password is an unbeatable defense .
How could the prosecution possibly prove that she didn't forget the password?

WaterBoard?

I don't see this as DNA, fingerprint etc. evidence. They are asking her to provide information that could incriminate her. They want information from her mind and I don't see where this is any different than pleading the Fifth Amendment in refusing to give testimony. The following is the definition of testimony in regard to legal proceedings:

"a solemn declaration usually made orally by a witness under oath in response to interrogation by a lawyer or authorized public official"


The following is the Fifth Amendment:

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

The court is trying to force testimony from her regarding the encryption on her laptop. IMO, this is an obvious violation of her constitutional rights as they are trying to force her to testify against her will.

I suppose it's a bit like getting a search warrant to find evidence in someone's property.

They're not asking her to be a witness against herself, as the password in itself isn't incriminating (which is I think where the distinction lies).

They're just asking for access to search a potential source of suspected evidence in a similar way to searching someone's house.


Wombler

When someone is accused of murder and their house is searched, the court doesn't force them to tell what the murder weapon was or where it is located. It is the burden of the prosecution to gather evidence without testimony from the defendant. I can name numerous other circumstances where the defendant isn't required to say a single word during their case.

If the prosecution wants the information from the laptop then they need to break the encryption without her help. Otherwise, they are compelling her to be a witness against herself and, IMO, this is clearly unconstitutional.

Don't laugh too hard. These people can seriously mess up you and your life. If you have nothing to lose, then you can play this game endlessly. But trust me, most people bow to their wishes and demands within a few days. The other trick is to make (a certain part) not a criminal case but a civil case. Or a case for national security, which results all amandments are now worthless. (There is a reason why the US is always at war with "some" country, because in war time your consitutional laws do not count).

The jailtime to contempt can actually be far worse than the punischment of the accused crime as well. Not many people like jailtime.

Legally they cannot force you into anything (with the exception of making it another kind of case), but when you are in a jail cell with three walls and a steel door, suddenly all law can be forgotten. There is no proof that you can, have or will be tortured or extorted in any way. As a suspect you have very little rights, no matter what the documents may say.

Legally wise is all just within the limits of the law as well. And they can prove you didn't cooperate at all, so all your counter-claims and motivation are worth nothing to the court. Remember you are all alone and a big suspect. You have nothing to hold on to.

So here's a tip for all you criminals and/or people with something very incrimenating to hide:

Protect and encrypt your laptop a lot. Do the plausible deniability. Do it two times on seperate spaces. Do it more times. (I.E. a virtual operating system within a container within a container within a virtual os. Make the movie Inception jelaous of your laptop). Don't forget to access all data from time to time and make sure your passwords are never alike or written down somewhere. There are a lot of methods to find out what you think.

I think when the DNA is taken from the persons body this is being a witness against "himself" . It is testimony . So should be voluntary just like speech.
Compare it to the prosecution trying to circumvent the Fifth amendment by saying this doesn't apply to written testimony. Then have the judge order the person to write their testimony against themselves. Since this wouldn't be orally.
Now if they can get the DNA indirectly & prove by "chain of evidence" is belongs to the person. Much harder to do . Then I would go with it.

To me fingerprints are different. They are only an ink copy so not direct evidence from a person.
So if I'm selected to be on a jury the DNA had better not be obtained with a court order or my vote will be "Not Guilty".

I know the "Patriot Act" is still in place. I believe it is itself unconstitutional .
Congress had no right to create & pass law that circumvents the US Constitution . Only a new amendment can legally do that.

This is a misinterpretation of the law.

" except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger;"

This applies only to military personnel . Who are tried under the uniform code of military justice .
IMO & not the laws there should be no uniform code of military justice that allows this. Or at the very least it should be the option of the soldier being tried to choose trial in a civilian court. To me this circumvents due process.
If anything those fighting for the US should maybe have greater rights not less.

Haha! Love that comment!

Forcing testimony is where I see this process being unconstitutional. It is one thing to give a DNA sample. It is a physical action that does not force the donor to give testimony. It is similar to a a child being a victim of sex abuse that claims the defendant has unique physical characteristics that they should not know. The defendant doesn't have to say, or testify to, anything in order for the truthfulness of the claims to be verified. IMO, every defendant has the right to remain silent because anything they say can and will be used against them. This is settled law as determined in the U.S. Supreme Court ruling in Miranda v. State of Arizona. In that ruling the right to remain silent was unequivocally determined to be an individual right under the Fifth Amendment. It is why we have Miranda Rights read to people before they are arrested and/or interrogated. A person that isn't read Miranda rights can still be interrogated but their testimony can not be used against them. Even then, a person can not be forced to talk but the Supreme Court ruling just shows how seriously they take Fifth Amendment rights. They took it seriously enough to even disregard testimony from people who are not informed of their constitutional right to remain silent. Forcing a person to give a password is violating their right to remain silent.

There are a few other times when testimony can be forced. One is before a grand jury but if it is forced then anything that person says and any resulting evidence collected from what they say will not be admissible in a court of law. Most any time testimony is forced, the testifier is granted immunity from prosecution from any crime they may have committed that is connected to their testimony.

I don't have a problem with someone "Giving" DNA .
My problem is with force or court order being used to take DNA.
The DNA is the testimony .

Although I am for child molesters being prosecuted . I'm not so sure a forced strip search of a presumed innocent until proved guilty person is legal .
Presumably the person being required to be examined this way is no more guilty than any other citizen . I bet a judge wouldn't order everyone in even the court room to submit to a strip search . Including him or her self. Although all citizens in the court room are under the same presumptiuon of being innocent . I think most would object to a strip search just to prove their innocence.
I think that the judicial system is no longer held to a high enough standard. That is why so many that have ended up provng their innocence after being convicted exist.
To add to that many have been refused a DNA test to confirm their innocence or guilt.
If they are already convicted by other evidence.

The reason I don't think obtaining DNA, fingerprint, bodily inspection etc. is a violation of the Fifth Amendment is it doesn't involve testimony or being a witness. I could site an extreme case where a person is found covered in blood on the sidewalk in front of a house where a violent murder was just committed. Should the police have the right to take samples of the blood on them to compare to the victim's blood? If this person has a cut and there is second party blood at the crime scene, should they take this person's DNA to for comparison?

I see a dividing line between collection of forensic evidence and forcing knowledge from a suspect that can only be obtained through interrogation. This violates the right to remain silent. Taking DNA does not. It is also not the case that prosecutors get to collect DNA from anyone they choose. Many times the court denies it because there isn't enough corroborating evidence to justify DNA collection just like is done with search warrants.

I am not the biggest fan of law enforcement but I also don't expect to require them to protect us and exact justice after tying both hands behind their back. If they can't collect evidence such as DNA, fingerprints etc. then they couldn't prosecute even 10% of the murder cases they see. I think the collection of DNA, whether by court order or otherwise, clears more people of committing crime than it convicts.

I agree it should, but it isn't. It's material evidence.

You drop DNA constantly, so that's not hard.

So an ink copy of DNA would be allowed?

Again, i agree, but again, it is there and it's been used.

I draw the line at physically removing a part of a persons body . Even if that is a small part .like blood or a DNA sample. Since it is directly from them I consider it the same as testifying.

In the scenario of a person covered with blood near a crime scene. Here is where I think the blood from their clothes could be sampled. Since you didn't say the blood covered person was also naked. Their clothes are not part of them so could be taken with a warrant.
But no to taking a direct sample for comparison.
A lot of crimes were solved & people convicted & found innocent before DNA . I didn't look it up but I believe the first cases using DNA started around 1985. So they managed then & could now. If a suspect voluntarily give DNA to clear themselves I think that is a good use.
For prosecution not being allowed to take a DNA sample . I doubt this happens very often . & when it does you can bet that person has the money for a good team of attorneys . How many cases being handled by a public defender do you think the prosecution is denied a DNA sample ? I bet it's zero .
Although several states have allowed DNA to clear men convicted of rape . There are several that have also denied men a DNA test.IMO this is to prevent the state from being sued & certainly isn't justice. This is a double standard where the state decides it doesn't want DNA used where it may go against them.
If following the highest law of the USA the Constitution ties law enforcements hands in some ways so be it. By doing so it also protects us & gives us justice.
If the Second amendment was allowed to be used as written we could much better protect ourselves. Law enforcement was never intended to be our sole protection .
If I requested a law enforcement officer to be assigned to protect me 24/7 just in case I needed protection. What do you think the answer would be? Since they don't actually allow me to use the Second Amendment freely. Then multiply that to every citizen of the USA. Of course this is impossible & the writers of the Constitution knew this . That is why we're supposed be allowed to do some of the protecting ourselves.
Before the 20th century a good bit of justice was done without law enforcement. Sometimes right & sometimes wrong . But it is still the same now when law enforcement wants to do it all . Sometimes right & sometimes wrong. Even though they usually prosecute when they can if someone takes justice into their own hands.

To answer Mr. Belvedere . Dropped DNA can't be linked to a person without a direct sample . In being dropped it loses the "chain of possession" .
Although there is no ink copy of DNA my answer would be yes if that was possible.
The same for fingerprints.

Although IMO DNA is covered under the Fifth & to me this is as direct as oral testimony.
As bad as I hate to I will use Roe vs Wade as an example. If a woman is allowed control over her body to the extent she can end the life of her unborn child . I think this sets precedent for any person to have control over their body. Specifically what is to be removed from it or not.

The Fourth Amendment covers seizure of evidence. I think it leaves open the collection of DNA. It says the following:

Amendment IV:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It actually says a person can be seized so by inference I would include a DNA sample as being part of a person. It also requires probable cause is needed to collect evidence not in the public domain so the police can't just take DNA from people they can't connect to a crime in any meaningful way.

Regardless, collecting DNA on most people isn't too difficult. It is getting to the point now that they can profile your DNA just from gripping an item and discarding it. I bet the typical household garbage load has all kinds of DNA from the creators of that trash. It has been decided that when garbage is left on the street, or at a restaurant after a meal, it is open for collection by the police to be used as evidence. The garbage has been "abandoned" by its owner when it is placed on the curb, in the trash or left on a table in a restaurant etc. and can be used as evidence.

I forget where it was, but that's how they tied a guy to a murder was through a saliva sample found on a cigarette he tossed.

We all have something to lose, that's the real point. If this were a game it wouldn't matter, sadly it is not. Of course most people "bow to their wishes and demands" and that is the bigger problem. It's usually the young who fight back against the BS, idealists though many may be, I say God bless them. People with jobs and families are either too busy or too afraid to stand up and take the risk and that's OK. "If not us then who? If not now then when?"

As for contempt of court, one of my heroes is Susan McDougal.


It's not only the "criminals" who need to worry.

I understand your point but just because a person is "seized " , arrested , or just "detained" . I see nothing that allows a DNA sample to be taken .
Here is my example if it is OK to "seized " a person Then take DNA they don't consent to then why not their right arm ? I'm sure they wouldn't consent to that either.

For taking DNA from an object . The problem with that is proof that only that person had touched the object.

I don't see much difference between taking fingerprints and DNA. Fingerprints were first used to solve a murder in 1905 which is over 100 years after the Constitution was written. IMO, whether prints are taken or DNA is collected they both represent unique indicators of a person. The ink used, and print matching techniques, in collecting fingerprints is akin to the DNA swab and the machines used to map DNA sequences. They both transform physical characteristics into a measurable form. The key to allowing the collection of evidence like this is that it isn't biased toward the suspect or the prosecutors. It is what it is and there is no doubts when it matches or doesn't match another data set. It is like the ultimate truth teller.

If a Judge can issue a search warrant for a safe to be opened and searched in the suspects home or office for evidence, due to probable cause, in my opinion the same must apply to a laptop.
I see little difference between documents in a safe and documents on a laptop.
Are not safe deposit boxes in major banks also searched under warrant!

Testimony is spoken, not a lot of zerros and ones in a computer, thus the right to remain silent per the constitution!

DNA is not testimony, it has to be processed and compared. The results given by a forensic scientist under oath and available for cross examination in court. The defendant is not giving testimony the scientist is.

The difference is the safe, or safe deposit box, can be opened without assistance from the suspect. There is no testimony required. I don't have an issue with the seizure of the laptop or the encryption being broken and the information retrieved. It is requiring the suspect to give up their "right to remain silent" by forcing testimony from them.

An interesting point is that the Supreme Court has ruled that a person can not be compelled to give up the combination numbers for a safe, lock etc. They have ruled that a person can be compelled to give up the key to a lock, safe etc. The difference in the court rulings is that the key is a physical object and the combination is not. I think a password should be equated to a combination as it isn't anything physical. A password is akin to a combination, IMO.

The US Supreme Court case that first addressed the issue of forcing and individual to divulge a lock combination is here: http://www.law.cornell.edu/supremecourt/text/487/201

The majority did agree with the dissent argument in that forcing the combination to be revealed was akin to giving testimony and violated Fifth Amendment rights. Here is an outtake from the majority response:

We do not disagree with the dissent that "[t]he expression of the contents of an individual's mind" is testimonial communication for purposes of the Fifth Amendment. Post, at 220, n. 1. We simply disagree with the dissent's conclusion that the execution of the consent directive at issue here forced petitioner to express the contents of his mind. In our view, such compulsion is more like "be[ing] forced to surrender a key to a strongbox containing incriminating documents" than it is like "be[ing] compelled to reveal the combination to [petitioner's] wall safe." Post, at 219.

Basically, the ruling and dissenting opinions both agree that forcing a person to reveal a combination is a violation of their Fifth Amendment rights. The interesting phrase, IMO, from the above is that they see divulging a combination is "[t]he expression of the contents of an individual's mind." If this goes to the US Supreme Court then I think this ruling will be overturned. Demanding a password is definitely requires the person to express the contents of their mind.

@ UTR , I think we've had a good debate on the DNA but I think we are at a stalemate.
My belief remains the same that forced DNA from the defendant is testimony & is unlikely to change. Your belief that it is not also remains the same .
I don't have any plans to go into politics so I doubt I will change the law on this.
It is possible I might at some time help change the precedent. I get called for jury duty about twice a year .If this came up in a trial I was a juror on & the court had forced DNA from a defendant. I would consider this evidence "poison fruit" & purposely ignore any evidence that came from it. Regardless of what it proved. So the prosecution had better have presented other evidence that would convince me to vote guilty. If not my vote would be "not guilty" .
In my state although judges don't give this instruction (because they are not really impartial & almost always favor the prosecution) a juror may ignore the law & vote their conscience. It's funny because this seems to violate the juror's oath . Since both are the law I see no problem with making a choice.

I can also vote against any judge I'm eligable to vote for if I know they have made a decision to allow this.