Earlier quoted context omitted.
No. I meant that “plausible deniability” is a thing, that if implemented properly will protect against these charges.
What happens when it becomes popular and police departments catch on? “plausible deniability” escalation is a two way street as others in this thread attest.
Police can’t demand you reveal your phone passcode then tell a jury you refused
381–390 of 615 posts
Re: Police can’t demand you reveal your phone passcode then tell a jury you refused
#382Earlier quoted context omitted.
Did you appeal? Or reach out to the ACLU or EFF? I'll admit I'm somewhat skeptical of your account, but if true I would expect a post demonstrating so would be on the front page of this site quite quickly.
Where I live you can only appeal once you're found guilty at a trial. The case is over 8 years old now and I still haven't had trial. I would hope the appeal court would reverse, but I've had about a dozen cases wrongly denied by the appellate courts recently. The appellate courts are pretty much as biased as the trial courts, especially at the state level. The federal courts are a little bit smarter. I've tried talk…
Re: Police can’t demand you reveal your phone passcode then tell a jury you refused
#383Formally the police can't demand a lot of stuff. Informally, they'll put you in a room and tell you that they have the legal right to keep you anywhere from 24 to 72 hours in there and they definitely can make you reconsider during that period -- to put it very mildly. Hint: some cops are really good in the skill of inflicting pain to people without lasting medical trace to prove it afterwards. Until there's true acc…
> some cops are really good… That’s why you ask for a defense attorney. Police even tell you this in your Maranda rights. If they fail read you your rights prior to detainment any thing they get in response to their questions or requests cannot be used against you.
That's not true in theory or practice. They are supposed to issue a Miranda warning at the time of arrest or prior to interrogation; detainment is not arrest, asking questions is not interrogation. If they pull you over and ask how fast you were going, if you confess to speeding it is admissible. Even when Miranda violations do occur, if they're not on video they can lie about it. Police are allowed to lie about most things and they're trained to lie, it's probably their most-used tactic. Since they're human, once they step outside the truth it's tempting to remain there, especially if it benefits them. The word of police is generally accepted by the court as fact unless evidence directly contradicts them and that evidence is not suppressed.
Re: Police can’t demand you reveal your phone passcode then tell a jury you refused
#384Earlier quoted context omitted.
I think an easier approach is not to do anything incriminating on your phone.
Hello privilege. "Incriminating" is whatever the man with the badge decides it is at that time. If you're aren't the right color, sex, orientation, or religion, you could be doing something considered incriminating by cops and courts in most of the US. It is a very red, conservative place outside of the cities.
Re: Police can’t demand you reveal your phone passcode then tell a jury you refused
#385> this case turns on one of the most fundamental protections in our constitutional system: an accused person’s ability to exercise his Fifth Amendment rights without having his silence used against him. A very interesting tidbit I learned here on HN a couple years back — the Supreme Court ruled in 1992 that you have to declare out loud an intent to invoke your Fifth Amendment rights, if you haven’t been formally arre…
The right against self-incrimination originally arose because of a quirk in English law relative to continental European law, and middle-age French law in particular. See, in France judicial execution was only permissible if the accused confessed. You couldn't use evidence as justification to execute someone; the defendant had to confess. This was considered humane and progressive--evidence might be false, but surely nobody would confess to a capital crime they didn't commit.
But this logic led down a terrible path. You could have the most brutal murderer in your hands, whom everybody knows without a doubt was guilty, but unless they confessed you could never execute them. (Life in prison just wasn't a thing because the state didn't have such an apparatus, at least not for common criminals.) So in a cruel twist of logic, there developed the system of torture for extracting confessions. Torture couldn't commence without eye witnesses, but this type of evidence wasn't taken in a proper trial (certainly not like we have today, or even as the English had at the time), AFAIU. So ultimately what you had in France and some other European countries was the most brutal criminal system imaginable, all because they were too absolutist and ideological in their understanding of how evidence can or should be used to mete out justice in light of the risk of error.
By contrast, what developed in England was a much different framework. In England any probative evidence could be used as proof of a crime, even a capital crime, so long as it convinced a jury, and so long as the defendant could likewise introduce any probative evidence that could exculpate himself. The English thought the French system of torture and extracted confessions abhorrent (just as the French, ironically, thought it unthinkable the English could execute someone based on circumstantial evidence alone), though that abhorrence was slow to become comprehensively enshrined directly in the constitutional law, thus the notorious instances and regimes of torture and extracted confessions in England. But those instances don't detract from the overall weight and theoretical foundation of the law.
Anyhow, my point is that in the spirit of English Common Law, the foundational rule is that any probative evidence should be admissible. Silence can certainly count as probative. And the core constitutional principle isn't that self-incrimination, per se, is bad, but that reliance on it can incentivize inhumane treatment of people. Furthermore, Miranda Rights are like a secondary or tertiary safeguard in service of preserving the core principles. All of which is to say that, while I'm not sure I would have decided the same way as those conservative judges, and to the extent we presume their sincerity, I can certainly appreciate the reluctance to exclude probative evidence based on an overly rigid and absolutist conception of how the government can make its case. Because history has proven that you can easily end up with the precise, extreme consequences--an unfathomably inhumane system--you're trying to avoid. The societal need to prosecute criminals will never go away, so there's always a balancing act at play. The lesson the English system took to heart is that, all things being equal, the more relevant facts you permit, the better.
EDIT: Much of the above was said more succinctly by the 15th century Chief Justice John Fortescue in De Laudibus Legum Angliae:
> For this reason, the Laws of France, in capital cases, do not think it enough to convict the accused by evidence, lest the innocent should thereby be condemned; they choose rather to put the accused themselves to the Rack, till they confess their guilt, than rely entirely on the deposition of witnesses.... By which over cautious, and inhuman stretch of policy, the suspected, as well as the really guilty, are, in that kingdom, tortured so many ways, as is too tedious and bad for description.
Re: Police can’t demand you reveal your phone passcode then tell a jury you refused
#386Earlier quoted context omitted.
Agreed. That's why I believe it might be super handy if every or at least many phones had this in place so that you don't really stand out. At least every phone using an alternate OS. If all the mainstream operating systems had this I would expect an arms race between the OS devs and the forensics device devs. As a side note, this would not necessarily be only used for law enforcement authorities. It could be that an…
> It could be that an armed phone thief requires you to unlock your phone. This exact scenario happened to me. They made me do a factory reset right in front of them, before handing the phone over. I didn't have any opportunity to do anything other than what they asked, and I probably would have been killed if I tried. I don't see how I would have been able to make use of such a feature in that scenario or any simila…
Wouldn't a thief that knows enough to ask you to do a factory reset also know to ask you to disable Find My iPhone ?
I mean you're even prompted to do so during the "erase all content & settings" process, right ?
Re: Police can’t demand you reveal your phone passcode then tell a jury you refused
#387Earlier quoted context omitted.
It is. Germany has no 'fruit of the poison tree' principle. Police can use whatever no matter how it was obtained.
Are you sure? Because in neighboring Czechia, a court can definitely rule evidence inadmissible if its gathering was legally unsound. For example, call recordings that were obtained without lawful permission can be thrown out and actually currently were in a highly visible case.
But I've mostly just got this from my wife complaining about it. There's very little structurally in place to prevent the police from abusing their power in germany, and when it comes to evidence collection, they are definitely incentivized to do so.
Re: Police can’t demand you reveal your phone passcode then tell a jury you refused
#388Sorry-- this is totally unrelated and maybe even inappropriate-- but how do people sort through 300+ comments on HN to consume a topic? I understand that /. introduces bias with its system, but I honestly find myself abandoning alot of deeper HN threads because it's so difficult to parse all the comments. Perhaps I'm missing something.
A more interesting question to me for a while has been, how to follow the evolution of a deep thread in which the time it takes to read a larger amount of comments, even more are made. How to know where all the new ones are? It’d be cool to be able to diff a thread based on timestamp.
Re: Police can’t demand you reveal your phone passcode then tell a jury you refused
#389Earlier quoted context omitted.
I was skeptical, but a quick web search verified that this 100% happened - recently even, in 2017. https://www.washingtonpost.com/news/true-crime/wp/2017/11/02... > The Louisiana Supreme Court ruled that the suspect was, in fact, asking for a “lawyer dog,” .. That's bad, dawg.
From reading the actual concurrence [0] I would say that, yes, it does appear from the way he quotes "lawyer dog" near the end, that the judge thought the suspect was making a flippant remark referring to a theoretical dog that is a lawyer, however, (as the quotes from the lawyers later in the WP article point out) it would seem the actual key point was that he prefaced his request for a lawyer with an 'if' clause, a…
> In my view, the defendant’s ambiguous and equivocal reference to a “lawyer dog” does not constitute an invocation of counsel that warrants termination of the interview and does not violate Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
"Equivocal" probably refers to Demesme saying "if y'all think I did it", but nonetheless it's hard for me to read the concurrence as anything other than a bad faith interpretation of his request for counsel.
Re: Police can’t demand you reveal your phone passcode then tell a jury you refused
#390Earlier quoted context omitted.
In many of these cases its your word against the cop's word. Guess whose side the justice system takes...
Yes, a police officer is considered an officer of the court [1]. His exposure to consequences for lying is higher than the average citizen under oath. Given two conflicting statements that cannot be resolved with evidence, it isn't a surprise that the judge is going to defer to the cop. [1] https://www.law.cornell.edu/wex/officer_of_the_court
I have an experience where a trooper lied to the court twice and I have evidence to back it up. Nobody cares. I tried a the ACLU (bigger fish to fry), a complaint with the department (they counseled him and made the excuse that they have a lot of new guys at this station), I wrote my state representatives multiple times (no reply, except for one, which was a form letter not even applicable to my scenario), we tried the DA's office (they participated in multiple rights violations), we tried the DoJ for civil rights violations (no updates for about 6 months), we submitted complaints against a magistrate and a judge with the board of conduct (no updates and over 6 months), we submitted complaints against the ADAs who participated in incompetent or misconduct to the Bar (was told they only investigate prosecutors if the court formally determines there was prosecutorial misconduct), talked to an civil rights lawyer (was told it was a violation, but the courts don't care unless large monetary damages were involved), and talked to an investigative journalist (ran a story similar to this but said to keep him posted if I find anything explosive).
There's literally nobody to turn to. Almost every person involved in the system made mistakes or misconduct during the process (cop, 2/3 magistrates - 3rd was arrested for an unrelated matter, the judge, 2 ADAs, etc). I have absolutely zero faith in the system.