Judge orders woman to give up password to hard drive

Is she saying that the act of speaking her password is self-incrimination?! That's certainly novel. I would say the incriminating stuff is not the password, but the stuff on the hard drive. A valid warrant should make that available. The password itself is not incriminating, IMHO. I would think there are analogous rulings on other statements (your name?) that are themselves not incriminating but that lead to incriminating evidence. (EDIT: Telling where the gun is would not seem to be analogous.)

This seems analogous to being confronted with a valid search warrant for your house and refusing to open the door. Suppose you had a fancy-schmancy lock on your door that could only be opened by the sound of your voice or some other bio-ID thingy, could you withhold any of those in the face of a legitimate warrants? Hmm...What's the cyber equivalent of a battering ram?

I'm usually all on the side of construing the 4th & 5th against the Gubment, but this sounds like a loser for the lady in question. It would seem wholly unfair to society to allow people to avoid valid warrants by such sophistry. But I could be wrong.

Am I missing something?


EDIT: I commend to your attention Ike's hypothetical about the safe.

 

On the other hand. Maybe in the hypotheticals about the self-destroying safe or the voice-activated lock, the gubment is just SOL unless they can find away to get at the stuff without your help. Weirder rulings have come down.

 

This is why I would be a horrible judge. There are good arguments on both sides of the question, and if you can't pick a winner, do you err on the side of protecting the public from scumbags? Or do you err on the "big picture" side of civil liberties, meaning protecting the public from the government? Makes my head spin.

 

I read the 5th Amendment to say that a criminal defendant has ZERO responsibility to assist the government in prosecuting them.

 

It's not a judge's job to protect us from scumbags. That'st he prosecution's job. The judge is supposed to interpret the law and make evidentiary and other rulings consistent with the statutes and the Constitution. Whether the scumbag gets off or not shouldn't be the judge's concern, unless, of course, said scumbag is an idiot and has waived jury trial.

 

Isn't is the job of a judge to make sure justice is served?

 

It's the job of the judge to follow the law regardless of esoteric concepts of justice.

 

Correct but could a judge not look at things like "saving time/money" as cooperating and might look kindly when bringing down the hammer? Criminals get credit for good behavior against time spent in the pokey. The article doesn't tell the whole story, unless I skimmed by it. Was there a warrant and has the laptop/computer been confiscated? If so, it will be unlocked with or without her password.

 

And what about when the law is murky, like it is here?

 

I've never done a federal criminal case. I do know that the judge has to follow the federal sentencing guidelines in imposing the sentence. I'm not sure how much wiggle room there is there. That said, if the Defendant is still in the process of fighting whether or not certain evidence even comes in, they're angling for a not-guilty verdict. It may well be that the state needs this evidence in order to get its conviction. If that's the case, in my opinion, tough **** for the prosecution.

 

Then she makes a call and they go on. There'll maybe be an appeal, maybe a plea based upon the evidence coming in... most likely a plea.

 

Okay, that's the whole point I was making. She has to make the call, and I would hope whatever she decides is in the interest of serving justice.

 

She will be ok as long as she doesn't smoke.

 

I perceive you have never tried to study law, because anyone who has done so seriously would never offer a trite "answer" like that. That sounds like something you'd hear from a conservative talk-radio hack. It's easy to say (like so many mindless political slogans) and true enough when the law is plain, but it ignores the often crucial question of "what is the law." Your statement is the first sentence of a debate, not the last one.

And law may not be synonymous with justice, but what do we base law on if not "esoteric concepts of justice?"
Sheesh. I don't want any law that's estranged from justice.

 

That and you're a woman.

 

I study and practice law every day for a living.. so you'd be wrong.

The idea of "justice" I'm getting from the OUI peanut gallery is that they want the Judge to make whatever rulings are necessary to ensure that the Defendant goes to the pokey. That isn't justice. A lot of the time, our civil liberties will prevent the state from getting a conviction of a guilty person. Better to let 100 guilty men go free and all of that...

 

Takes one to know one, pretty.

 

The federal sentencing guidelines are advisory only, since 2005 (Booker is the SUP CT case). But the judges are supposed to calculate a guidelines sentence , at least to get a starting point for the sentence they ultimately impose. You can get credit for acceptance of responsibility, and increases for "obstructing justice." It would be problematic for a judge to increase a sentence based on a defendant litigating to protecting his constitutional rights, but it would not be a such a problem to deny credit acceptance of responsibility for the same reason.

 

OUI? Most of the people in this thread have been right here on the South Oval many years longer than you.

 

Well I stand corrected on your being a lawyer. But why would you then make such a facile statement when you know things are seldom so cut and dried?