Sometimes, the act of producing evidence in response to a government request involves the defendant making implicit incriminating assertions. If the government says "produce all your cooked accounting books," handing over those documents implicitly communicates the assertions that (1) certain books exist; (2) those books are doctored; and (3) you have ownership/control over them. However, say the government asks you for your bank records. When you hand them over, you're implicitly saying "I have bank records," and "these are my bank records." That's not incriminating -- even if the bank records themselves might contain incriminating evidence.
The "foregone conclusion rule," says that the act of production is non-testimonial when the incriminating facts are already known.[1] If the existence of doctored books is already known by other means, the act of producing them doesn't communicate anything to the authorities. The books themselves are obviously communicated, but the 5th amendment does not protect the underlying evidence. It protects the implied statements by the defendant about the underlying evidence.
Hence the threading the needle in the opinion. They're not asking the guy to make incriminating statements about the existence of incriminating evidence. They're asking him to turn over the incriminating evidence they already know exists.
[1] Note that the Court is not saying "we already know he's guilty so the 5th amendment doesn't apply."
As a gratuitously distorted example, lets say i had cooked accounting books in a spreadsheet on my computer, and they were encrypted by a random password that /i/ do not know, but have on a memory stick in a safe. It seems that logically that would be equivalent, but i also am very much not a lawyer so am perfectly willing to accept i am missing nuance of the law.
Outside of the law i don't like the forgone conclusion stuff - for example, revolution period you could say hanging out with revolutionaries regularly could reasonably conclude your documents include a calendar for revolutionary meetings so you should be required to provide that information and/or information required to receive that. Obviously that's some contorted logic but i don't think it's that far removed from this.
I would argue that a hash match should be sufficient, and i would be convinced that (absent other information and details) this was evidence that he's a pedo, but i can see how a lawyer could create reasonable doubt where in reality there is none (specifically referring to hashes here, nothing else).
Of course i can't serve on a jury (and apparently knowing what you're talking about may be disqualifying? :-/)
Basically, judges don't agree on which way this scenario comes out.
> Outside of the law i don't like the forgone conclusion stuff - for example, revolution period you could say hanging out with revolutionaries regularly could reasonably conclude your documents include a calendar for revolutionary meetings so you should be required to provide that information and/or information required to receive that.
The "foregone conclusion" stuff is narrower than Ars makes it out to be. The gist of the 5th amendment is that the government can make a defendant do things but not transfer information.[1] Sometimes, an action can implicitly transfer information. The foregone conclusion rule just says that if the government already has the information, then the action does not additionally transfer information.
In your hypothetical, the foregone conclusion rule would not apply because even if the government "could reasonably conclude" that you have a calendar, producing it would still confirm that conjecture (and thus transfer information). But if the government knows you have the calendar, however, because your sister testified that you keep a calendar of revolutionary meetings, then producing it becomes a pure action.
[1] I'd actually argue that the gist of the 5th amendment is even narrower than that: the government literally can't put you on the stand to testify against yourself, or enter into evidence a coerced confession. That's it.
You opening the safe cannot be used as evidence against you; that would cause your action to be "testimonial", and protected. The contents of the safe are evidence, and not testimonial.
If I'm understanding this correctly; it would be like saying "open the safe with the illegal weapons in it", and pointing at the safe. If you open it, does that mean you're admitting the weapons are illegal?
Kind of, yes. The non-contrived situation where this comes up is with subpoenas. A subpoena will request specific documents or specific kinds of documents. Responding to the subpoena requires making judgments about what documents are responsive to the request, and there is an implicit assertion that documents produced fall within the scope of the subpoena request.
So the government cannot, for example, make you "produce all accounting records containing false numbers." Producing documents in response to that comes with the implicit admission that the accounting records are false. The government can eliminate that problem simply by asking for all accounting records.
What befuddles my non-lawyer mind is that why such evidence is needed in the first place. If it's established firmly that someone has piles of illegal files, then for the sake of their incrimination, why do the files need to be produced at all?
If on the other hand, the files are being requisitioned for purposes unrelated to the the defendant's current outstanding culpability, then what laws does that kind of thing fall under?
Maybe the hashes can only tell that some drive contains the images, and the prosecutor believes it is this particular drive, and tries to avoid having to deal with that defense ?
If there is evidence that the particular drive contains those images, why bother with the drive at all ? This is the part that doesn't make sense to me.
So, you might say, ok, then that means asking Rawls to unlock the drives is asking him to incriminate himself, and that's not cool. But still, go back to the "foregone conclusion" bit: this isn't a fishing expedition to see if they can find evidence of wrongdoing. They're not asking him, "Hey, do you have any child porn on your hard drives? If so, give them to us." If that were what they're doing, Rawls would be perfectly in the right to say, "I do not have any files to give you". They know, based on the log files, that the incriminating files are on the drive. They are merely requiring Rawls to produce evidence that they know exists, and his refusal to do so is unlawful. Just as if someone refused to turn over bank records that the authorities knew existed.
I know I'm not explaining this perfectly (IANAL, as I said), but hopefully this helps?
If I have sales receipts and camera footage showing you purchased 100 Led Zeppelin CDs, do I need to see the CDs in person before I know you have good taste in music?
I'm guessing this has something to do with the subtleties of admissible evidence versus 4th amendment stuff.
What is a confession but a piece of evidence stored in memory made of biological matter?
How is it different to grant a confession where the memory is electronic rather than biological?
"Lay inside this fMRI machine for an accurate brainscan if you are lying, and image retrieval of the time in question. Or you will be put in jail until you do."
And I also seem to remember a certain dead salmon who in an fMRI, showed amazing brain activity(!).
Yeah, exactly.
It seems to me that unless we decide that memories stored in digital media is subject to the same sorts of rights against intrusion from the state as memories stored in biological media, the scenario you describe is inevitable precisely because the line between these two types of memory will be increasingly blurred.
Here's what I'm missing: why doesn't, in a similar vein, the government simply ask him to unlock the hard drives without any claimed assumption as to their contents?