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Re: discussion about the man exercising his 5th ammendmen...

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  • Ricky Gurley
    ... Incorrect! Read some of the case law on the subject: HOFFMAN v. UNITED STATES, 341 U.S. 479 (1951) 341 U.S. 479 HOFFMAN v. UNITED STATES. CERTIORARI TO THE
    Message 1 of 2 , Dec 22 12:49 AM
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      --- In infoguys-list@yahoogroups.com, suesarkis@... wrote:
      > Rick -
      > For starters, although you might disagree with some legal views,
      >how dare
      >you say INCORRECT about what I wrote. There was nothing incorrect
      >there at all
      >as I opined the judge is incorrect but that was an opinion, not a
      >fact.. You can disagree all you want but do not accuse my thought
      >process of
      >being INCORRECT especially when my mind thinks the same as the major
      >players in
      >the legal courts.


      Read some of the case law on the subject:

      HOFFMAN v. UNITED STATES, 341 U.S. 479 (1951)
      341 U.S. 479
      No. 513.
      Argued April 25, 1951.
      Decided May 28, 1951.


      Read the language of the case law:

      "The Fifth Amendment declares in part that "No person . . . shall be
      compelled in any criminal case to be a witness [341 U.S. 479, 486]
      against himself." This guarantee against testimonial compulsion, like
      other provisions of the Bill of Rights, "was added to the original
      Constitution in the conviction that too high a price may be paid even
      for the unhampered enforcement of the criminal law and that, in its
      attainment, other social objects of a free society should not be
      sacrificed." Feldman v. United States, 322 U.S. 487, 489 (1944). This
      provision of the Amendment must be accorded liberal construction in
      favor of the right it was intended to secure. Counselman v. Hitchcock,
      142 U.S. 547, 562 (1892); Arndstein v. McCarthy, 254 U.S. 71, 72 -73

      "The privilege afforded not only extends to answers that would in
      themselves support a conviction under a federal criminal statute but
      likewise embraces those which would furnish a link in the chain of
      evidence needed to prosecute the claimant for a federal crime."

      "It appears that the petition which comprised the supplemental record,
      though captioned a "Petition for Reconsideration of Allowance of Bail
      Pending Appeal," was by its terms an application to the District Court
      to vacate the contempt order on constitutional grounds, and
      alternatively a second motion for bail. Clearly this petition, filed
      but two weeks after the contempt order, was directed to the power of
      the committing court to discharge the contemnor for good cause - a
      power which courts should be solicitous to invoke when important
      constitutional objections are renewed. Cf. Gouled v. United States, 255
      U.S. 298 (1921). The ends of justice require discharge of one having
      such a right whenever facts appear sufficient to sustain the claim of
      privilege. Accordingly the supplemental record should have been
      considered by the Court of Appeals.

      For these reasons we cannot agree with the judgments below. If this
      result adds to the burden of diligence and efficiency resting on
      enforcement authorities, any other [341 U.S. 479, 490] conclusion
      would seriously compromise an important constitutional liberty. "The
      immediate and potential evils of compulsory self-disclosure transcend
      any difficulties that the exercise of the privilege may impose on
      society in the detection and prosecution of crime." United States v.
      White, 322 U.S. 694, 698 (1944). Pertinent here is the observation of
      Mr. Justice Brandeis for this Court in McCarthy v. Arndstein, 266 U.S.
      34, 42 (1924): "If Congress should hereafter conclude that a full
      disclosure . . . by the witnesses is of greater importance than the
      possibility of punishing them for some crime in the past, it can, as in
      other cases, confer the power of unrestricted examination by providing
      complete immunity."

      Once you start researching case law regarding a person's 5th Amendment
      right, and the language used by the appeals courts in that case law,
      Miss Sue "Thurgood Marshall" Sarkis, you will begin to understand how
      serious this issue has been taken throughout the years.

      We are not discussing physical evidence i.e. blood, semen, saliva, hair
      samples etc., etc.; we are discussing testimonial disclosures, two
      vastly different subjects.

      The 5th Amendment right even extends to Police Interrogations, ever
      heard of the Miranda Warning? Maybe you should read up on it:

      MIRANDA v. ARIZONA, 384 U.S. 436 (1966)
      384 U.S. 436
      No. 759.
      Argued February 28 - March 1, 1966.
      Decided June 13, 1966. *


      Read the language in the case law:

      "In these cases, we might not find the defendants' statements to have
      been involuntary in traditional terms. Our concern for adequate
      safeguards to protect precious Fifth Amendment rights is, of course,
      not lessened in the slightest. In each of the cases, the defendant was
      thrust into an unfamiliar atmosphere and run through menacing police
      interrogation procedures. The potentiality for compulsion is forcefully
      apparent, for example, in Miranda, where the indigent Mexican defendant
      was a seriously disturbed individual with pronounced sexual fantasies,
      and in Stewart, in which the defendant was an indigent Los Angeles
      Negro who had dropped out of school in the sixth grade. To be sure, the
      records do not evince overt physical coercion or patent psychological
      ploys. The fact remains that in none of these cases did the officers
      undertake to afford appropriate safeguards at the outset of the
      interrogation to insure that the statements were truly the product of
      free choice."

      " The question in these cases is whether the privilege is fully
      applicable during a period of custodial interrogation. [384 U.S. 436,
      461] In this Court, the privilege has consistently been accorded a
      liberal construction. Albertson v. SACB, 382 U.S. 70, 81 (1965);
      Hoffman v. United States, 341 U.S. 479, 486 (1951); Arndstein v.
      McCarthy, 254 U.S. 71, 72 -73 (1920); Counselman v. Hitchock, 142 U.S.
      547, 562 (1892). We are satisfied that all the principles embodied in
      the privilege apply to informal compulsion exerted by law-enforcement
      officers during in-custody questioning. An individual swept from
      familiar surroundings into police custody, surrounded by antagonistic
      forces, and subjected to the techniques of persuasion described above
      cannot be otherwise than under compulsion to speak. As a practical
      matter, the compulsion to speak in the isolated setting of the police
      station may well be greater than in courts or other official
      investigations, where there are often impartial observers to guard
      against intimidation or trickery. 30

      This question, in fact, could have been taken as settled in federal
      courts almost 70 years ago, when, in Bram v. United States, 168 U.S.
      532, 542 (1897), this Court held:

      "In criminal trials, in the courts of the United States, wherever a
      question arises whether a confession is incompetent because not
      voluntary, the issue is controlled by that portion of the Fifth
      Amendment . . . commanding that no person `shall be compelled in any
      criminal case to be a witness against himself.'"

      "To summarize, we hold that when an individual is taken into custody or
      otherwise deprived of his freedom by the authorities in any significant
      way and is subjected to questioning, the privilege against self-
      incrimination is jeopardized. Procedural safeguards must be employed to
      [384 U.S. 436, 479] protect the privilege, and unless other fully
      effective means are adopted to notify the person of his right of
      silence and to assure that the exercise of the right will be
      scrupulously honored, the following measures are required. He must be
      warned prior to any questioning that he has the right to remain silent,
      that anything he says can be used against him in a court of law, that
      he has the right to the presence of an attorney, and that if he cannot
      afford an attorney one will be appointed for him prior to any
      questioning if he so desires. Opportunity to exercise these rights must
      be afforded to him throughout the interrogation. After such warnings
      have been given, and such opportunity afforded him, the individual may
      knowingly and intelligently waive these rights and agree to answer
      questions or make a statement. But unless and until such warnings and
      waiver are demonstrated by the prosecution at trial, no evidence
      obtained as a result of interrogation can be used against him. 48"

      I don't even know why you are "spouting this BS". The 5th Amendment
      right against self incrimination is a very simple phrase, that even the
      dumbest of us can equate to how being compelled to give over your pass
      phrase to the police, so they can get to evidence that may incriminate
      you, is a violation of a person's right to not incriminate their self.
      Liberal minded or not, it makes no difference, this issue is actually
      pretty simple. The higher courts have always erred on the side of
      protecting a person's 5th Amendment right against self incrimination.
      Sure their are exceptions:

      (1) if the case is not criminal, but civil instead, no 5th Amendment

      (2) if immunity is offered, this can cause a loss of a person's 5th
      Amendment right.

      (3) if the statement was completely voluntary, there is no protection.

      (4) if the proceeding is to revoke a person's probation, the proceeding
      is not deemed a "criminal proceeding", and no privilege is allowed:
      Minnesota v. Murphy, 465 U.S. 420, 435 n.7 (1984)

      However, in THIS case... In this specific case, none of this applies.
      Furthermore, the government is not trying to compel this person to give
      PHYSICAL EVIDENCE, the government is trying to compel this man's
      PRIVATE THOUGHTS! Why is that pass phrase his PRIVATE THOUGHT? Because
      nobody other than him has the thought of that pass phrase in their mind
      (nobody that anyone in this case knows about, anyway), if they did we
      would not even be having this debate!

      I am not liberal at all.. Quite the contrary... However, even a guilty
      person has a right and is entitled to a vigorous defense... I am a
      Private Investigator, I work for the defense; that is my job. I make no
      apologies for it. I do my job well. I get paid well for it, and I am
      the person that gets the call in Columbia, MO. when there is an
      attorney that has a client charged with a crime such as this. At this
      point, I have been the ONLY Private Investigator in my locale that has
      been responsible for having a similar case discontinued by the
      Prosecutor due to a legal strategy that my company advised the defense
      attorney to employ. I could care less if you really WANT to believe
      that you are of the same mindset of some of our best and brightest
      legal minds, you are certainly free to deceive yourself. To reverse the
      process so that you might understand the importance of our rights, it
      is held that before a person is convicted, they must be found guilty,
      and if they are not found guilty, then they are innocent, and an
      innocent person has legal and constitutional rights, and those rights
      are held as highly important in our Judicial System.

      I don't have a problem with you saying that the government should try
      to "hack" the laptop, the government has that right once it is
      evidence, as long as they can authenticate the evidence by court
      acceptable standards if they do "hack" the laptop. Unfortunately, all
      of the "hacking" and "cracking" in the world is probably not going to
      do any good, if you knew anything about PGP and the history of it,
      you'd know this (just Google "Phil Zimmerman";
      http://tinyurl.com/2lc9zv). I think it is fair to say that the PGP
      encryption is probably correctly set up, since a Secret Service Agent
      with the Secret Services Computer Crimes Unit has testified that he
      could not get in, and to use a random pass phrase dictionary styled
      attack could take years.

      But don't try to "muddy the water" on such issues as a person's 5th
      amendment right, it serves no constructive purpose. I and others have
      been researching this issue for months, and it was only a matter of
      time before a Judge ruled like this. Anyone that has done any research
      on this issue would know that. This ruling is one that many of us that
      do this type of work have been expecting for a while now


      Risk Management Research & Investments, Inc.
      "He Who Forgets, Will Be Destined To Remember"
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