More on Boucher

Scott Greenfield writes to "deconstruct" (whatever that means) the Boucher confusion on password and privilege.

Scott and Orin Kerr and Gideon all presumed that Mr. Boucher had input the password at the border when agents asked to see what was on the computer. But the Boucher opinion doesn't actually say that Mr. Boucher input his password at the border. In fact, "Agent Curtis did not see Boucher enter a password to access drive Z."

Scott's reasoning, given in a comment to the "deconstructing" post, for his assumption that Mr. Boucher had input the password at the border is this: "It strikes me as hard to figure out how the border guards found the original kiddie porn file if he hadn't input the password in the first instance."

I'd like to propose two plausible explanations.

First, drive Z may already have been decrypted and mounted when Mr. Boucher woke his computer from sleep at the crossing. After seeing the suspect images, according to Magistrate Judge Niedermeier's opinion, "Agent Curtis arrested Boucher. He then seized the laptop, after shutting it down." This would have triggered the encryption software's unmount of drive Z.

Second (Scott, bear with me, I'm thinking like an actual criminal defense lawyer) Agent Curtis may not have found a kiddie porn file on the computer. He might not have seen the contents of drive Z at all. He could be making up some or all of this story as a pretext to find out what is on drive Z. (Why, then, would Mr. Boucher refuse to open drive Z for the government? Because whatever the contents of drive Z, they none of the Government's damn business.)

That dispenses with what Scott calls "Orin's nit-picking on one fact," but how does it affect the analysis?

Scot thinks that one fact is important:

The difference is that each new question, new room searched, new act of sex (if one is inclined to follow Bennett's lead), is an independent act and hence entitled to independent protection. The password demanded from Boucher is not a new bit of information, but the same bit that has already been provided. They just need it again.

That's a distinction without a difference. If Magistrate Judge Niedermeier is right that this case poses a Fifth Amendment question, it doesn't matter whether Mr. Boucher had answered the government's question before.

The government can't compel an accused to answer its questions again any more than it could have compelled him to answer its questions the first time. If an accused confesses at the police station, he's not waiving his right to remain silent at trial. The government can't force him to answer the same questions at trial that he answered before. And if the government does force him to answer the questions, then it can't make either direct or derivative use of the answers against him.

If Mr. Boucher had not moved to quash the subpoena, or if the magistrate judge had denied the motion to quash, he could have taken the Fifth before the Grand Jury. Then the government could have given him immunity (technically or practically [by getting Judge Niedermeier to order him to answer the question]) and forced him to answer the question or go to jail for contempt (which might be less onerous than going to prison for possession of child pornography). If he had then answered the question, his answer would have been compelled, and the government couldn't use the answer against him directly or indirectly.

If Mr. Boucher had been compelled to provide his password and Agent Curtis became unavailable for trial, the only evidence the government would then have of the contents of the hard drive would have been derived from Mr. Boucher's compelled testimony, and would therefore have been inadmissible.

The only way the government wins this one is if the contents of Mr. Boucher's brain were never protected by the Fifth Amendment.

You Can Always Say No

Gideon brings us news of a federal case in Vermont in which the judge has refused to force the accused to reveal the password that he used to PGP-encrypt the kiddie porn on his computer, even though the accused had already used the password to show agents what was on the computer.

This is, of course, a good ruling for liberty. In a world of sneak-and-peaks and warrantless wiretaps, it allows us to maintain a preserve of privacy into which the government cannot force its way. Apparently the USCBP doesn't yet have the quantum computers that would be needed to crack the RSA algorithm. If NSA's got that technology, they're not sharing. Download PGP today, and start using it.

According to the Washington Post article,

Orin S. Kerr, an expert in computer crime law at George Washington University, said that Boucher lost his Fifth Amendment privilege when he admitted that it was his computer and that he stored images in the encrypted part of the hard drive. "If you admit something to the government, you give up the right against self-incrimination later on," said Kerr, a former federal prosecutor.

That reminded me of one of our law school classmates who, when we were discussing the law of rape in first-year criminal law class, asked the professor, "if you consent to have sex with someone once, does that mean you've consented for always?"

Um, no.

More on the Fifth

In response to this post about prosecutors advising witnesses who wish to take the Fifth, an anonymous Harris County prosecutor wrote:

Before you are too hard on the D.A.s for telling a witness that they can't plead the 5th on the stand, you should realize how often that comes up for us. Too many witnesses believe that a lack of interest in testifying means that they can plead the 5th. Or the fact that they don't want to rat out their friend works for them too. I agree that if there is some true criminal exposure that we've got no business telling them that they can't plead the 5th. I don't know what everybody else does, but I will let a witness know if I think there is even a remote possibility that they need a lawyer.

In fact, a lack of interest in testifying is an excellent reason to plead the Fifth. The fact that you don't want to rat out your friend is another. So is a desire to make the prosecutor actually work. When a witness takes the Fifth, he doesn't have to justify it to anyone. You can take the Fifth and refuse to talk to the police and prosecutors because this is America.

That's not just my whacky radical defense-lawyer philosophy; it's the law. Here's how it works: if you take the Fifth, there's not a damn thing the prosecutor or the court can do, other than give you immunity. If you get immunity and testify, and it turns out that your testimony was in no way incriminatory -- even if it becomes apparent that you were just trying to protect your buddy -- there's not a damn thing the prosecutor or the court can do about it. If you don't get immunity and don't testify, there's not a damn thing the prosecutor or the court can do about it. In other words, you can't be punished for taking the Fifth, regardless of your secret reasons for doing so.

(For an excellent explanation of why immunity statutes are themselves violative of the Fifth Amendment, see Freedom Spent, which I link to below.)

If a prosecutor sees a remote possibility that a witness needs a lawyer, then it's a good idea for him to tell the witness that. But even when the prosecutor doesn't see that possibility -- and even when the witness himself doesn't see that possibility -- it might be there.

Richard Harris, from "Freedom Spent: Tales of Tyranny in America":

In legal terms, of course, what is a lie and what is not is up to a jury to decide. One may believe that one is telling the truth when being questioned [by agents or police], only to later recall events somewhat differently; if one then tells the revised cersion of those events before a grand jury or a court, one can be prosecuted for having lied in the first place. even as seemingly small an untruth as telling a government official that one doesn't know anything about what is being inquired into when one does know something about it is a criminal act . . . . some lawyers would argue that the only sensibly self-protective course for anyone, guilty or innocent of wrongdoing, is to refuse to speak to any government agent unless a lawyer is present. . . .

Generally a prosecutor's idea of what a witness will say comes only from the offense report and his own previous discussions with the witness. The prosecutor doesn't know (a) whether the witness really told the police what the police say he told them, or (b) whether the witness was telling the truth to the police or to him (and of course a witness with more than half a brain will not tell the prosecutor that he lied to the cops). If the witness gets on the witness stand and, under oath, tells a story different than the one the cops say he told before, he might face criminal liability for lying to the cops, regardless of whether he actually said what the cops claim he said.

(I say that the prosecutor doesn't know whether the witness was telling the truth to the police, but sometimes a prosecutor does know that a witness's intended testimony under oath will be different than her statements to the police. The prosecutor threatens to charge the witness with making a false statement to the police if the witness testifies that the police report was false. In this scenario, does the prosecutor give the witness the correct legal advice: "you need to get a lawyer"? I've never heard of it happening.)

A prosecutor doesn't know what the truth is, and doesn't know what possible exposure the witness might have. So a prosecutor never has any business telling a witness that he doesn't need a lawyer.

The Fifth

Twice recently I've had people -- potential witnesses in criminal cases -- tell me, "the prosecutor said I couldn't take the Fifth because I'm not testifying to anything incriminating." One of them, an alleged complaining witness, even told me, "the prosecutor said I didn't need a lawyer because he's my lawyer."

Hogwash.

First, the prosecutor isn't the witness's lawyer. He shouldn't be giving legal advice to the witness and he certainly shouldn't be claiming to represent her. The prosecutor represents the government, and if the government's interests clash with the witness's interests, he is going to do what his client, the government, wants him to do. The witness who listens to the government in those circumstances is looking for trouble.

Second, the prosecutor doesn't get to decide whether the answer to a question might be incriminating. Neither does the judge. Nor do the police, the FBI, or the DEA. Only the witness can possibly know what is in her head, and even she isn't competent to know whether what is in her head, if it came out, might incriminate her. For example, if you talk to federal agents, and they decide later that you lied (whether they are correct or not), you can be prosecuted for making a false statement.

If a witness refuses to answer his questions outside court, all the prosecutor can do is subpoena her to court. If she takes the stand and takes the Fifth there and the prosecutor still wants her to answer his questions (at about this time the prosecutor ought to be taking a deep breath and wondering whether he really wants the answers), he must immunize her. That means that he must get a formal order declaring that what she says can't be used against her. If she answers the questions then, fine. If not, he must ask the judge to order her to answer the questions. If she answers the questions then, again, fine. If not, then and only then may she be punished (by being held in contempt) for not answering the government's questions.

Sometimes, maybe, with the advice of a good lawyer who is familiar with all of the facts, it makes sense for a person to give up the protection of the Fifth Amendment and talk to the government. Usually, though, a witness has so little to gain from talking to the government, and the possible legal downside of talking is so great, that the best advice is for the witness to keep her mouth shut at least until not doing so is punishable as contempt.

Who ya gonna believe, me or some guy who's in the business of putting people in prison?

Failure to Testify

From McClung's Texas Pattern Jury Charges:

You are instructed that our law provides that the failure of the defendant to testify shall not be taken as a circumstance against him, and during your deliberations you must not allude to, comment on, or discuss the failure of the defendant to testify in this cause, nor will you refer to or discuss any matter not before you in evidence.

How is it even conceivable that we should allow a court, when talking to jurors, to describe a defendant's election not to testify -- the exercise of one of the rights that we, as defenders, hold sacred -- as a "failure"?