This was the law around the turn of the 20th century. The U.S. Supreme Court has since reversed itself through a series of opinions. In other words, compelling the production of evidence, testimonial or not, was construed as a violation of the 5th Amendment by the U.S. Supreme Court around the turn of the 20th century. This is presently no longer true and the Court has reversed this position since in its 5th Amendment jurisprudence.
Well you did seem to draw some distinction between pre-trial evidence gathering and testimony during trial.
I can’t think of anytime giving the police a password isn’t incriminating. It should ALWAYS prove that you have control over the laptop and is more important than the laptop being found in your house for purposes of incriminating. All other evidence of ownership is lesser.
Because what the government knows isn’t legally relevant. Them knowing you’re guilty doesn’t change your constitutional rights.
Let’s go with a hypothetical. Let’s say the police have recordings of you talking about your meth lab, letters referencing your meth lab, voicemails about your meth lab, e-mails about your meth lab, a document labeled “expenditures for NotreDame05’s meth lab”, pictures of you in a lab under a banner of “NotreDame05’s meth lab”, and a video of you making meth while repeatedly saying, “I am NotreDame05 and I am making meth in my own meth lab”. In short, the police are 100% certain you have a meth lab, but they aren’t sure where.
Can they force you to lead them to that meth lab? The only promise they will give is that the fact you lead them to the meth lab will not be used to prosecute, but any fingerprints or other evidence developed in the lab will. Is that constitutional?
Really? Those comments I italicized can be appropriately construed as seeming to draw such a distinction? No way but I digress and discussing such a point is irrelevant now.
I can’t see how it would be incriminating, except for possibly the act of production itself, under the circumstances of law enforcement alredy knowing person X had or has control over the laptop. If law enforcement is already aware of who had or is presently exerting control over the laptop, then providing the password isn’t incriminating, unless we assume law enforcement coming into contact with information it already has or is aware of constitutes as incriminating, which does not make a lot of sense although it is not entirely devoid of merit.
The answer to the question would be no and there is at least one very important fact readily distinguishing the facts of your hypothetical from the facts of this decision by the district court. In your hypothetical, law enforcement is unaware of the location of the methamphetamine lab, and consequently, revealing its location is incriminating.
The evidentiary gap between the documentary evidence, such as the recordings, voicmails, e-mails, papers, etcetera, and the lab in question is the fact the two have to be linked together, and they aren’t under your hypothetical. The documentary evidence merely indicates the existence of a methamphetamine lab at some point, possibly in the past, but does not indicate presently the existence of a meth lab. Taking law enforcement to the location of the lab demonstrates his knowledge of the lab presently in existence, which is not at all made known to law enforcement by the documentary evidence in your hypothetical. At best all law enforcement knows by the documentary evidence is he had a lab, or at least wrote about having a lab.
Furthermore, the documentary evidence does not indicate or suggest the lab in question is the lab referred to in the documentary evidence, which is to say there is the possibility of two separate crimes, the lab you reference but unknown to law enforcement, and the other lab mentioned in the documentation.
These facts are unlike those of the recent decision in which law enforcement knows where the files are kept, who has control or had control over the laptop, and is aware of who has and knows the password.
Your quibble is about the degree of certainty to which the government knows something. In my hypothetical they know with, say, 99.9% certainty that I have a drug lab somewhere. In the case under discussion, they may know with 99.9999% certainty. But, IMHO that is ultimately irrelevant. The salient point is that you can not force someone to admit a part of a crime.
Part of proving the crime of child pornography is proving ownership and control of the laptop. No different than proving ownership and control of a drug lab. By forcing someone to give up a password, they are admitting that, yes, this is my computer and I have control over it. Exactly the same as the drug lab. You are admitting that yes, you know about this building and have control over everything in it.
Actually do to the doctrine of use immunity, I do believe the courts would say yes this is constitutional. Don’t get me wrong, I don’t like it and think it does not enforce the constitution and is unconstitutional in my opinion. The same for the password.
A password to munch the drive won’t do much good – unless the police are all as dumb as Inspector Clouseau, they’ll back up the encrypted data before trying to access it.
A plausible-deniability encrypted partition (which is an option under TrueCrypt) is a more effective defense – if implemented properly, there’s no real way to prove it’s there (an encrypted partition is supposed to be padded with random data, and the real-secrets partition looks just like random data within the innocuous-cover partition).
It isn’t “my quibble.” I am not the one who espoused the doctrine of foregone conclusion or the reasoning used to support it, the U.S. Supreme Court did, which was relied upon in this case and another. I do, however, see some merit in the foregone conclusion and the reasoning used to justify it.
My retort had nothing to do with the degree of certainty regarding government knowledge about the existence of some fact.
You could improve your hypothetical by stating law enforcement has evidence demonstrating a specific methamphetamine lab at a specific location belongs to X person.
I agree. The U.S. Supreme Court agrees. The trial court in this case agrees. However, according to the trial court, relying upon the reasoning in U.S. v. Fischer, the defendant/suspect is not being forced to admit to any crime.
No, you are assuming the existence of an admission under these facts without actually presenting any argument establishing such an admission. The Court has long held the incriminating conduct must A.) be testimonial, i.e. communicates a message and B.) the testimony/message is incriminating.
As the trial court reasoned, when the government already has separate and independent evidence demonstrating A.) ownership, B.) control, then providing them with a password is not testimonial or incriminating, as it reveals nothing to law enforcement, i.e. it isn’t testimonial as such information was a foregone conclusion, they already knew it and the password therefore says nothing, and it isn’t incriminating, precisely because they already know the information. This reasoning is perhaps strengthened when they have the defendant’s own statements to a third party demonstrating ownership or control, maybe both but certainly one or the other, along with the defendant’s own statements acknowledging the existence of a password.
Under these facts, disclosure of the password or encrypted data is not incriminating according to the court.
I will say, however, despite finding this reasoning to be persuasive, I am very ambivalent about the position taken by the trial court, and indeed I myself have some apprehensions about this position.
NotreDame05 could you please better cite U.S. v. Fischer upon which you rely? A link would be nice but a full citation would work. Even the year would help.
The fifth amendment/production of documents case I know of is Fisher without a c.