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5th Amendment Question
- Thread starter Orleander
- Start date
If I killed someone and hid the body, could they force me to show them where the body is? Wouldn't that be self-incriminating?
Or if I had something on my computer, but they couldn't get to it, could they force me to give them the password?
On that first question, no - they cannot.
On the second, that very issue is working it's way through the courts right at this moment:
Mod Note: The listed link has broken, but MSNBC.com refers readers to the following:
Nakashima, Ellen. "In Child Porn Case, a Digital Dilemma". Washington Post. January 16, 2008; page A01. See http://www.washingtonpost.com/wp-dyn/content/article/2008/01/15/AR2008011503663.html
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sowhatifit'sdark
Valued Senior Member
On that first question, no - they cannot.
On the second, that very issue is working it's way through the courts right at this moment: http://www.msnbc.msn.com/id/22672241/
I think this case is silly. I don't think they should set precedent. Their concern is that it might take years to get in using guesses. There must be programs that do this, so use them. So it takes years. Pretrial shit can take years.
If he has child porn in there, he is in for a bad two years. Every day expecting that call.
There's a Constitutional provision that says they can't take years. (Most long criminal trial delays are the defendent's doing ).sowhat said:Their concern is that it might take years to get in using guesses. There must be programs that do this, so use them. So it takes years. Pretrial shit can take years
And there are cryptographic methods that could take not just years, but millenia, to crack.
Which to me means that sometimes they can't get in. Too bad. But the courts nowdays - - -.
sowhatifit'sdark
Valued Senior Member
There's a Constitutional provision that says they can't take years. (Most long criminal trial delays are the defendent's doing ).
And there are cryptographic methods that could take not just years, but millenia, to crack.
Which to me means that sometimes they can't get in. Too bad. But the courts nowdays - - -.
The trial has to be speedy but I don't think the investigation has to be. Once he is charged then the speedy part comes in.
The article claimed it 'might take years' I assume if they meant millions they would have added that. Of course the article may have gotten that part wrong.
wouldnt both of those cases come under interfering in a police investigation?
No. The first one clearly falls under our 5th Amendment right to NOT do anything that would be self incriminating. Surely you have something similar in your country, do you not?
And the second situation will be determined in the courts - although it looks very much like it will be covered also.
well we have the right not to tell cops your name but interfering with a police investigation is a crime.
How far does the 5th amendment go?
For instance a hit run driver, is that a crime or does having to report an acident to police or wait at an acident scean contravine the right against self incrimination?
How far does the 5th amendment go?
For instance a hit run driver, is that a crime or does having to report an acident to police or wait at an acident scean contravine the right against self incrimination?
well we have the right not to tell cops your name but interfering with a police investigation is a crime.
C'mon, now - you've GOT to have more than that!
How far does the 5th amendment go?
For instance a hit run driver, is that a crime or does having to report an acident to police or wait at an acident scean contravine the right against self incrimination?
Sure it has limitations. In this country - and I imagine in most Western nations - leaving the scene is a crime and so is not reporting it. That's not what the Amendment is about at all - it's about being asked questions and being FORCED to answer.
actually the laws are rather complicated now. You dont have to say anything in an interview with police but the police could quite easierly go to court and FORCE you to. Of corse with the AFP ect it gets even more complicated
Rember all the rights are given to us under common law or legislation not under consitutional law. There is no bill of rights in Australia which can make things a little confusing.
I would guess that both cases here would end up in the courts and probably travel all the way to the high court before an answer was decided.
In the first case i would guess that the police would have to prove to the judge that you actually KNEW where the body was to begin with and then if you refused you could be charged with contempt or if you lied you would be charged with purgury.
The second i think would end in a contempt charge as well
Rember all the rights are given to us under common law or legislation not under consitutional law. There is no bill of rights in Australia which can make things a little confusing.
I would guess that both cases here would end up in the courts and probably travel all the way to the high court before an answer was decided.
In the first case i would guess that the police would have to prove to the judge that you actually KNEW where the body was to begin with and then if you refused you could be charged with contempt or if you lied you would be charged with purgury.
The second i think would end in a contempt charge as well
Depends on the encryption. I was speaking theoretically, about a legal principle that would cover the general situation.said:The article claimed it 'might take years' I assume if they meant millions they would have added that
Then if I'm him I either skip town or sue for my seized belongings.sowhatif said:The trial has to be speedy but I don't think the investigation has to be. Once he is charged then the speedy part comes in.
They can't just take your stuff and keep it indefinitely, no charges or anything.
The question is incorrectly posed. It is supposed to ask, "If you had incriminating evidence on your computer, is it a crime to not reveal the password; are you protected by the 5th Amendment?" The indefinite question, "Can they make you do it?" really doesn't hold any weight. I'm sure there are ways to get you to reveal your password, the issue that should be on hand is if they could charge you for a more (or less) serious crime if you do not disclose said password.
To recap, imagine you had lots of child pornography on your computer which was locked by a 64bit encrypted password (64bits = 120 years of guessing by the fastest computer available). The court would inform you that they need to access your computer for investigation purposes and denying them such access more or less further incriminates you of the allegations against you. The question on my mind is, if they don't actually have HARD evidence of such pornography existing on your computer less you denying them access for whatever personal reasons, could they charge you with the crime of holding such pictures? Could they add another charge against you for withholding evidence? Are you in any way protected by the 5th amendment in such circumstances?
To recap, imagine you had lots of child pornography on your computer which was locked by a 64bit encrypted password (64bits = 120 years of guessing by the fastest computer available). The court would inform you that they need to access your computer for investigation purposes and denying them such access more or less further incriminates you of the allegations against you. The question on my mind is, if they don't actually have HARD evidence of such pornography existing on your computer less you denying them access for whatever personal reasons, could they charge you with the crime of holding such pictures? Could they add another charge against you for withholding evidence? Are you in any way protected by the 5th amendment in such circumstances?
If I killed someone and hid the body, could they force me to show them where the body is? Wouldn't that be self-incriminating?
Or if I had something on my computer, but they couldn't get to it, could they force me to give them the password?
Q1. No
Q2. Yes.
The 5th Amendment states:
National Archives said: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.
You cannot be forced to be a witness against yourself or to testify against yourself in a court of law.
On your first question you could just maintain the argument that you didn't do it and don't know where the body is so it's not really a 5th Amendment issue anyhow. They could make you open your car or your house or anything else you have control of so they could look for the body but they couldn't make you lead them to it.
On the second question you could be forced to comply with any search warrant served giving investigators the authority to search your computer. Complying with a search warrant is not testifying against yourself in court or pointing out incriminating evidence that could be used against your so it's not a 5th Amendment issue either. Imagine having a digital combination on your house and the police getting a search warrant for it. They can require you to open the premises in compliance with the warrant but they cannot require you to lead them to any evidence inside those premises that could incriminate you. Your simple act of opening the lock is not providing evidence against yourself, only access for them to look for evidence.
Could they add another charge against you for withholding evidence? Are you in any way protected by the 5th amendment in such circumstances?
The 5th Amendment does not protect you from Obstruction of Justice...
Q1. No
Q2. Yes.
The 5th Amendment states:
You cannot be forced to be a witness against yourself or to testify against yourself in a court of law.
On your first question you could just maintain the argument that you didn't do it and don't know where the body is so it's not really a 5th Amendment issue anyhow. They could make you open your car or your house or anything else you have control of so they could look for the body but they couldn't make you lead them to it.
On the second question you could be forced to comply with any search warrant served giving investigators the authority to search your computer. Complying with a search warrant is not testifying against yourself in court or pointing out incriminating evidence that could be used against your so it's not a 5th Amendment issue either. Imagine having a digital combination on your house and the police getting a search warrant for it. They can require you to open the premises in compliance with the warrant but they cannot require you to lead them to any evidence inside those premises that could incriminate you. Your simple act of opening the lock is not providing evidence against yourself, only access for them to look for evidence.
Evidently your personal interpretation of the law is not prevailing at the moment - that's why the question is still tied up in court (or did you not know that?).
Evidently your personal interpretation of the law is not prevailing at the moment - that's why the question is still tied up in court (or did you not know that?).
Yes I know that. I predict the court will order the man to type his password. That act, in and of itself, is not being a witness against one's self.
FWIW, if the guy had used TrueCrypt he wouldn't be fighting this issue....
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Yes I know that. I predict the court will order the man to type his password. That act, in and of itself, is not being a witness against one's self.
FWIW, if the guy had used TrueCrypt he wouldn't be fighting this issue....
We will simply have to wait and see how good your crystal ball is. My money is on the opposite outcome - but it's pretty useless to try and predict what a court will do. I really don't think it's even worth talking about at this point of the game.