Re: 5th protect password?

At 03:33 PM 4/19/96 -0800, Roger  Schlafly wrote:

>Is this really an issue?  I am not an expert, but I just read a
>Supreme Court case:
>
>   DOE v. United States, 487 U.S. 201; 108 S. Ct. 2341 (1988)
>
>It involved someone who was ordered by the court to consent to the
>Cayman Islands bank to turn over account records.  The Supreme
>Court said yes, because it is "more like 'be[ing] forced to
>surrender a key to a strongbox containing incriminating documents'
>than it is like 'be[ing] compelled to reveal the combination to
>[petitioner's] wall safe.'"
>
>The quote refers to Stevens' dissent, which said:
>
>   A defendant can be compelled to produce material evidence that
>   is incriminating.  Fingerprints, blood samples, voice
>   exemplars, handwriting specimens, or other items of physical
>   evidence may be extracted from a defendant against his will.


As you might expect, I see a problem (and a pattern!) with even these 
examples.  Notice that with the possible exception of "handwriting 
specimens", the examples above all represent pieces of evidence whose 
utility was only made technologically possible by developments done more 
than a century after the writing of the Constitution.  Fingerprints have 
only come into use in this century, voiceprints only in the last 30 or so 
years, blood samples were only uniquely identifiable within the last 10-15 
or so, etc.  I think even graphology (handwriting analysis) for legal 
purposes is likewise comparatively recent, although there is no obvious 
technological reason which this should have been so.  The last category, 
"other items of physical evidence" is too unspecific to interpret.

The problem?  Well, with the exception of the polygraph (whose reliability 
is severely (!) in doubt), I can't think of another technology which has 
been denied to cops by refusing their insistence on being given evidence.  
The implication, unfortunately, is that whereever a new technology pops up, 
the courts regularly ignore the fifth amendment, finding some excuse to 
insist that a defendant provide evidence.  This really isn't surprising:  
Remember, the Constitution was written by _revolutionaries_, while the 
infringements on that Constitution are done by _bureaucrats_.  Any 
bureaucratic interpretation of the Constitution is inherently flawed;  the 
proper, "revolutionary" interpretation of the 5th amendment is that a 
defendant should in no way be required to cooperate with the prosecution if 
the results of that cooperation could conceivably be used to convict him.

Anyone who denies this should be required to make a list of the kinds of 
evidence which was regularly demanded of a 1783-era defendant.

Jim Bell
jimbell@pacifier.com

Jim:

On Sat, 20 Apr 1996, jim bell wrote:

> >   DOE v. United States, 487 U.S. 201; 108 S. Ct. 2341 (1988)

> >   A defendant can be compelled to produce material evidence that
> >   is incriminating.  Fingerprints, blood samples, voice
> >   exemplars, handwriting specimens, or other items of physical
> >   evidence may be extracted from a defendant against his will.
> 
> As you might expect, I see a problem (and a pattern!) with even these 
	
	The pattern is that you are again ignoring legal realities.
	<< Which is a thing to be expected.  >> 

> examples.  Notice that with the possible exception of "handwriting 
> specimens", the examples above all represent pieces of evidence whose 

	Handwriting as a tool used by most people, dates back to
	Eighteenth Century.  Before that, it was a trade practiced
	by scribes, and priests. In Europe, outside of the Clergy,
	illiteracy was the standard, till the begining of the Industrial
	Revolution.   <<   Remember that John Dee had an incredibly large
	library of 200 volumes.  >> 

> or so, etc.  I think even graphology (handwriting analysis) for legal 
> purposes is likewise comparatively recent, although there is no obvious 
> technological reason which this should have been so.  The last category, 

	Courts have yet to rule that an individual can be forced
	to provide a sample of their handwriting, if the purpose
	of obtaining such a script is for a graphological profile.
	More to the point, courts -- or at least US Courts -- don't
	accept graphological profiles, as proof of anything.  

	I suspect you confusing graphology with questioned document
	examination. Courts have ruled that a person may be forced
	to provide a sample of writing, for use in questioned document
	examination, without violating the fifth amendment.  << You ought
	to read the case law, to see why providing such a sample is
	not a fifth amendment violation ---- it might help you be a 
	better armchair lawyer, who spends to much time watching
	Perry Mason reruns.  >> 

> Anyone who denies this should be required to make a list of the kinds of 

	Questined Document Examination, which you alluded to, was
	first accepted by courts in the United States, at the turn 
	of the century.  And it was only after World War One, that 
	it was accepted in all courts in the US.  

        xan

        jonathon
        grafolog@netcom.com

        Owner:     Graphology-L@Bolis-com 
	

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> >   A defendant can be compelled to produce material evidence that
> >   is incriminating.  Fingerprints, blood samples, voice
> >   exemplars, handwriting specimens, or other items of physical
> >   evidence may be extracted from a defendant against his will.

> As you might expect, I see a problem (and a pattern!) with even these 
> examples.  Notice that with the possible exception of "handwriting 
> specimens", the examples above all represent pieces of evidence whose 
> utility was only made technologically possible by developments done more 
> than a century after the writing of the Constitution.  Fingerprints have 

I think you missed the main pattern... When a suspect is required to
provide fingerprints, voice, blood and/or handwriting samples, those
things are used exclusively for _identification_.

The only exceptions I can think of are when blood, breath and urine
samples are taken from a suspect to detect certain chemicials in the body. 
But, AFAIK, those exceptions are entirely the product of the recent war on
drugs. 

Just my two bits. IANAL.

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