Basically, the 5th amendment guarantees that somebody who is accused of a crime has the right to remain silent. And as I understand it, this means that he can literally keep his lips sealed, i. e. not even uttering as much as “good morning” or “good evening”.
(It is important to note that the prosecutors in this case had positive knowledge of the fact that the hard drive did indeed contain incriminating material; the accused bragged about this in a taped phone call).
I wonder if, besides the computer password scenario, there are other instances where somebody who is accused of a crime is actually required or can even be forced so say something?
I’ve been looking for this information on Wikipedia but haven’t found it.
So basically the situation is this: You have the right to remain silent (silent as in: no sound waves emanating from the mouth), but if you do actually remain silent, you are obstructing justice.
I don’t know about the 5th Amendment as such, but at common law if the accused of his own accord in the witness box or otherwise raised something then he could be cross examined on it even if it went to incriminating himself, but only on issues directly arising from the assertion.
AK84 has legal qualifications I understand, so I defer to his advice.
However, I think the original question can be unclear in that the answer will probably vary in a jurisdiction, and more specifically, at what stage are you talking about? Are you asking about when the accused is in the court, or being questioned by police?
IANAL, but I’d think the situation given by the OP falls into a different class of law. If the police have a warrant to search your house, you can’t lock the doors and say that they are off-limits. You can be compelled to give up the key. And the police can forcibly take your fingerprints and, I believe, your DNA. Blood can also be drawn with a warrant.
I’m pretty sure the assumption is that a password to a computer is like a key to a lock. You have to unlock it in a legal search for evidence even if whatever is concealed may be damaging to you. But that’s not testifying against yourself. The prosecutors still have to make their case based on what they find and you can defend yourself against those findings.
POST arrest, routine booking questions, height, eight, etc. do not trigger 5th AM scrutiny, see Pennsylvania v. Muniz.
PRE arrest and 5th AM protection can be state specific. There is a lot of case law out there but one important case is Hiibel v. Sixth Judial District (Arizona, 2004). The SC was presented with the question of whether a state could criminalize faiure to give a name/furnishing and ID when one was detained for investigation. They answered that in the affirmitive.
Shortly after Hiibel, my state, Ohio passed thier “Stop and Identify” statute. According to Hiibel, though one must be “under investigation”, compare the Texas/Brown case cited internally.
In another instance, at least federally, when asked if you comitted an offense, at the investigation stage, and you answer NO, when you in fact did it, it is a crime in and of itself. The SC addressed the “Exculpatory No” doctine, and cleared up the confusion among the Federal Courts.
There are RARE occasions when refusing to give information as a witness at the scene of a major crime, you can be arrested as a Material Witness. My state has such a statute, and I know the feds do.
You can, as the same as NOT answering the door, but all rules of criminal procedure authorize police to break down a door, etc, if serving a warrant and there is no response.
Blood only POST arrest. There was some talk about some states passing laws that police themselves could withdraw blood at the scene, instead of transport to a facility and having a professional do it?
DNA and fingerprinting, without prior judicial authorization or post arrest, no, compare Davis v. Mississippi, from memory.
The distinction was technical - when evidence is specifically subpoenaed you must produce it - I.e. “give us your tax returns for the last 5 years.” not sure what the legal ramifivations are of refusing.
In the Colorado case, the lady was taped in a phone call saying she had certain documents in the encrypted disk. The DA argued it was like asking for a key. The defense argued that asking for a password was different. For a door, safe, or lock, if you don’t cooperate, the police can break in anyway. For a secret password, they are asking you to betray your testimony, the contents of your mind - basically, testimony…
In this case, the husband provided the password before the situation could be decided on appeal.
In another case, someone was crossing the border; they fired up their laptop for the border guards. When the border guards saw illegal content, they arrested the guy. When they went to review the evidence,it was password protected. IIRC the case was settled with a plea deal before the key question could be decided.
The argument too was that having revealed the evidence once, like making a statement in court, you cannot then refuse to answer questions about it.
Basically, if you refuse to provide details the court orders you to, they toss you in jail for contempt until you comply. Or, the case works it up to an appeal court that says you don’t have to testify against yourself.
So what’s worse -several years in jail for contempt, or the sentence they give you should they see that evidence?