Suppose I was called in for jury duty, and when the bailiff says “Do you swear/affirm to answer all questions truthfully?” I say “No.” If the judge throws me in the slammer for being a smart-ass, will I rot there forever if I don’t change my tune? I know all I have to do is comply with the court’s wishes to be freed, but what if I refuse on moral grounds? Can contempt be a life sentence, or is there some statutory limit to how long the Sheriff can keep me canned?
Not sure about you spesific example, but if somebody charged with a crime is held in contempt they could risk being held in contempt for the maximum penalty for the charge against them. (As I’ve understood it from reading various message boards, IANAL of course) If some 1337 Haxx0r is charged with computer trespassing (or whatever it’s called) with a maximum penalty of, say 10 years, and the cops have found an encrypted disk with what they suspect contains damming evidence of said trespass, and the accused refuses to divulge the decryption key, the Judge could throw him in jail for contempt and keep him there for up to 10 years.
How this will work for somebody who is a Juror/witness and as such is facing no penalties I have no idea.
I wonder whether this is true. I’ve never understood exactly what the implications of the fifth amendment are, but I suspect this might be a case where it applies. Maybe not though.
-FrL-
I think it would depend on the court. Here’s a guy who’s been in jail for 11 years so far.
Well according to the discussion I read the gist of it was that while you have a protected right not to self incriminate yourself, you are not allowed to surpress evidence. Therefore, nobody could force you to testify to the contents of the encrypted data, but failing to provide access to them was a contemptible offense. Not sure if this is correct, hopefully some legaleese person could verify/deny.
Interesting point in the article - Federal courts allow for 18 months as maximum for contempt. State laws I guess varies then, up to unlimited as seems to be the case here.
Not as fluent in legalese as I used to be, and while recognizing that the law frequently makes no sense, this makes no sense. While you certainly can’t legally destroy evidence I can’t see how one can be compelled to reveal the location of incriminating evidence without that being a violation of the 5th Amendment.
Maybe it’s like this. Maybe the guy is not being called to be a “witness” against himself per se. Rather, he’s being asked to cooperate with an investigation, and is refusing.
I’m just guessing.
-Kris
Scenario one: police suspect that John Wifekiller has murdered his wife and hidden the body. They ask him where he hid the body and he refuses to answer on the grounds that the answer may tend to incriminate him.
Scenario two: police suspect that Joe Hacker possesses stolen data on his encrypted hard drive. They ask him what the decryption key is and he refuses to answer on the grounds that the answer may tend to incriminate him.
I’m not seeing the difference between the two scenarios. In each case the suspect is being asked to give information which will allow police access to evidence that may expose him to criminal penalty. In each case he refuses to do so, asserting his Fifth Amendment right against self-incrimination.
The Federal rule also used to be entirely open-ended. It was codified in the last few years after a woman who hid her child from her ex-husband in a divorce proceeding (arranging for the child to stay with a friend whom she then refused to identify, claiming that ex-hubby would otherwise sexually abuse the child) was held in contempt and jailed for several years.
Ohio law allows for unlimited duration of contempt, subject to a “reasonableness” standard, IIRC. I’ve often held businesses and corporate agents in indirect civil contempt of court for failure to comply with my court’s garnishment orders (fines accrue, but no one goes to jail), but have only held individuals appearing before me in contempt a handful of times - and only jailed one, for a few minutes, when he showed up drunk in court… on a DUI charge. :rolleyes:
Contempt is an inherent power of the court that is best used sparingly, if at all.
I think those two scenarios are substantially similar as well. I was saying maybe the difference is whether it is a policeman asking you during an investigation, or else, a lawyer asking you during a trial. In an investigation, you can’t testify against yourself because there’s no such thing as testimony in an investigation. The amendment says you can’t be “compelled in any criminal case to be a witness against” yourself. Maybe “witness” here means strictly a witness in a trial.
Again, just guessing. And I don’t know whether the situation described in the OP involves a witness in a trial or a person being questioned in an investigation.
-FrL-
Wow, we have a judge on the dope? I didn’t know.
-FrL-
In situation two, if the police had a warrant to search, say, Joe Hacker’s house, papers, computer, and digital files stored within said computer, that doesn’t require Mr. Hacker to provide them with passwords and keys, does it?
I mean, say the police suspected I was a drug runner. They get a warrant to search my house. In the living room, there is a door in the wall, and in front of the door is a six-foot tall bookshelf filled with books. Assuming the warrant allows them to search the entire property, they can go through that door, sure. But could they require me to move the bookshelf so that they can more easily get through? I imagine not, but then again, most of what I know about this stuff comes from junk novels.
Someday, maybe. I’m a municipal court magistrate.
Here’s an idea: Instead of asking for a generic “password,” the computer asks you for the date in 2006 on which you committed a felony; the geographical coordinates where it was done; and the section of the penal code you violated. Only by putting that information in do you get access to the hard drive.
What exactly is the difference between a magistrate and a judge?
Judgeship is an office usually created by authority that flows from a state or federal constitution. There is a set, public procedure for someone becoming a judge, usually through election or through an executive-appointment-and-legislative-confirmation process.
In the United States, federal law and many state laws allow for the appointment of hiring of “magistrate judges” at a less-than-constitutional level, such as simply as a hiring decision by a presiding judge.
So, to put it simply, a magistrate judge is like an assistant to a judge, who can take some of the workload from a judge, but need not be subject to constitutional processes.
My WAG is that yes, it would.
Hell, yeah, you’d have to move the bookshelf if they asked you to. More likely, they’d do it themselves. What do you think a search warrant is for?
Here’s the wiki article on the Elizabeth Morgan Act. Dr. Morgan was willing to stay in prison forever rather than allow her ex-husband visitation with their daughter, who her parents had takent o New Zealand. The whole thing was a she said/he said matter, the core being that Elizabeth did not want her ex to have anything to do with their daughter.
That would be Elizabeth Morgan, I think. I believe she was held for contempt for about two years.
Acsenray has it mostly right. Magistrates under Ohio law are appointed by the court which they serve; all Ohio judges are elected by the public. “Magistrate judges” are found only in the Federal court system (before that, they were simply called magistrates, and even before that, U.S. commissioners) and serve 8-year terms if fulltime, and 4-year terms if part-time. Magistrates in Ohio municipal courts, like me, are appointed by the court as a whole, not by any individual judge, and hold office during good behavior. Only a majority of our judges could fire me (and I don’t intend to ever give them a reason to - it’s a good gig!). Other courts handle it differently. Magistrates in Ohio juvenile courts, for instance, are appointed by individual judges and lose office whenever the judge does, whether due to death, resignation, retirement, or defeat at the polls.
I do everything the judges of my court do, except conduct criminal jury trials and weddings, which are exclusively entrusted to judges. I can (and have) conducted civil jury trials if both sides consent. All of my decisions are subject to the review and approval, disapproval or re-referral by our judges, although 99% of the time they just sign off on what I’ve done.