Re: discussion about the man exercising his 5th ammendmen...
- --- In email@example.com, suesarkis@... wrote:
> Rick -
> For starters, although you might disagree with some legal views,
>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
>being INCORRECT especially when my mind thinks the same as the major
>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
HOFFMAN v. UNITED STATES.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT.
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
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
MIRANDA v. ARIZONA.
CERTIORARI TO THE SUPREME COURT OF ARIZONA.
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
" 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
(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.
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