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Regarding Marcus Hutchins aka MalwareTech

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Re: Regarding Marcus Hutchins aka MalwareTech

#131

Post by tptacek »

pja wrote: post #116
wildmusings wrote: post #90

Earlier quoted context omitted.

You really shouldn't accuse me of telling a "gigantic lie" when you are wrong. In the UK, police can use your silence at time of questioning to cast doubt on future exculpatory claims that you make. In the US, the government can never make that argument in court. So in the US, the best course of action is, without qualification, to remain silent until speaking to a lawyer. In the UK, doing that can be presented as ev…

Sure: The UK moved to a qualified right to silence some time ago. On the flip side, UK police are far more constrained in their actions when interviewing suspects than US police are: @ UK police are not permitted to lie to suspects in interviews @ Interviews must be recorded from start to finish. @ No abusive use of plea bargains: we don’t do the “take this plea bargain or risk being locked up for 60 years” thing at…

Without legal representation, I can see there being some debate about whether the UK has stronger protections for the accused than the US. But with representation, it seems there's no question: the things the UK police aren't allowed to do are things that lawyers handle in the US anyways, and not having a right to remain silent is an enormous problem for the accused with or without a lawyer.

There are further differences. For instance:

* Like most of Europe, the UK doesn't have an exclusionary rule for illegitimately obtained evidence. Unauthorized searches can produce evidence admissible in court.

* Defendants in the UK don't have the same right to avoid self-incrimination that US defendants do.

* Evidence obtained through entrapment can be admissible in UK courts.

* There's precedent in the UK for secret criminal trials (the US has "secret courts", but those courts have no powers to hear criminal cases).

* The UK accused can be held for up to 28 days without charge.

* Terror suspects in the UK can be placed on what is effectively house arrest indefinitely, without criminal charges.

Re: Regarding Marcus Hutchins aka MalwareTech

#132

Post by tptacek »

celticninja wrote: post #128
wildmusings wrote: post #49

Earlier quoted context omitted.

This is simply not true. Everyone on US soil has the same rights when accused of a crime. Incidentally, the rights of the accused are stronger in the US than in any other jurisdiction in the world. He has the unqualified right to remain silent and to a jury trial in which illegally gathered evidence is excluded. He would have neither of those in the UK.

> in which illegally gathered evidence is excluded. If you discount parallel construction

Which you might as well, if you're comparing UK law to that of the US, because the UK doesn't have an exclusionary rule for evidence obtained illegally.

Re: Regarding Marcus Hutchins aka MalwareTech

#133

Post by wildmusings »

humanrebar wrote: post #130
wildmusings wrote: post #125

Earlier quoted context omitted.

The idea of the exclusionary principle is that it's the only way to have the right incentives for the authorities to abide by constitutional restrictions on their power. If they don't follow the rules, then they can't use their evidence in court. As a result, their internal procedures are designed to prevent that outcome. Despite the high profile cases and media coverage that makes it seem otherwise, law enforcement…

> ...it's the only way... How can this be true? "Only" is a strong word. And there are functioning judicial systems elsewhere that have different evidentiary rules. I agree that there should be external incentives to obey rules and procedures, but there have to be other incentives out there. Why can't sanctions against individuals and organizations work just as well, for instance? The exclusionary principle is remark…

>Why can't sanctions against individuals and organizations work just as well, for instance?

Because the judicial branch doesn't play an active role in regulating and managing the executive branch. They can only address specific cases and controversies that have been brought before them. And if the legislature doesn't enact penalties for police overstepping their bounds, then the courts can do nothing to punish them. They can only issue orders to halt a specific ongoing violation. This is a hard requirement of the US Constitution[1], and the other common law systems around the world function the same way.

[1] https://en.wikipedia.org/wiki/Case_or_Controversy_Clause

Re: Regarding Marcus Hutchins aka MalwareTech

#134

Post by humanrebar »

wildmusings wrote: post #133
humanrebar wrote: post #130

Earlier quoted context omitted.

> ...it's the only way... How can this be true? "Only" is a strong word. And there are functioning judicial systems elsewhere that have different evidentiary rules. I agree that there should be external incentives to obey rules and procedures, but there have to be other incentives out there. Why can't sanctions against individuals and organizations work just as well, for instance? The exclusionary principle is remark…

> Why can't sanctions against individuals and organizations work just as well, for instance? Because the judicial branch doesn't play an active role in regulating and managing the executive branch. They can only address specific cases and controversies that have been brought before them. And if the legislature doesn't enact penalties for police overstepping their bounds, then the courts can do nothing to punish them.…

So there needs to be legislative and/or executive action for that approach, sure. But the underlying point is that the argument for evidence exclusion is a procedural one, which means that innovation on the incentives side of things (carrots or sticks) is entirely possible.

What concerns me is that there seems to be a resignation to a false dichotomy between partially informed jurors and abusive trials. I'm not convinced that there isn't a better option out there. Especially since the U.S. is somewhat unique in its application of the idea.

http://www.nytimes.com/2008/07/19/us/19exclude.html

Re: Regarding Marcus Hutchins aka MalwareTech

#135

Post by tptacek »

icpmacdo wrote: post #129
thieving_magpie wrote: post #28

Still waiting for actual details related to the charges to come out before rushing forward with my opinion on the matter.

We can still point you the bullshit things the US is doing like trying to say he was breaking felony gun laws going to the shooting ranges on the strip and using that as a reason to stop his bail https://twitter.com/ChristyNews3LV/status/893603855266492416

Not only did he get bail, but his bail was cheap. Don't get all your news from Twitter.

Re: Regarding Marcus Hutchins aka MalwareTech

#136

Post by tedunangst »

tptacek wrote: post #135
icpmacdo wrote: post #129

Earlier quoted context omitted.

We can still point you the bullshit things the US is doing like trying to say he was breaking felony gun laws going to the shooting ranges on the strip and using that as a reason to stop his bail https://twitter.com/ChristyNews3LV/status/893603855266492416

Not only did he get bail, but his bail was cheap. Don't get all your news from Twitter.

But how else would we know who the prosecutor voted for in the last election?

Re: Regarding Marcus Hutchins aka MalwareTech

#137

Post by wildmusings »

humanrebar wrote: post #134
wildmusings wrote: post #133

Earlier quoted context omitted.

> Why can't sanctions against individuals and organizations work just as well, for instance? Because the judicial branch doesn't play an active role in regulating and managing the executive branch. They can only address specific cases and controversies that have been brought before them. And if the legislature doesn't enact penalties for police overstepping their bounds, then the courts can do nothing to punish them.…

So there needs to be legislative and/or executive action for that approach, sure. But the underlying point is that the argument for evidence exclusion is a procedural one, which means that innovation on the incentives side of things (carrots or sticks) is entirely possible. What concerns me is that there seems to be a resignation to a false dichotomy between partially informed jurors and abusive trials. I'm not convi…

>So there needs to be legislative and/or executive action for that approach, sure. But the underlying point is that the argument for evidence exclusion is a procedural one, which means that innovation on the incentives side of things (carrots or sticks) is entirely possible.

In the UK, these rights are merely statutory and exist at the discretion of Parliament (the doctrine of Parliamentary Sovereignty). If Parliament does not create an adequate enforcement mechanism, then that is its will and the legally legitimate outcome.

The rights guaranteed by the US Constitution, however, do not exist at the discretion of Congress. The courts will not allow the Fourth Amendment to become inoperative because Congress and the President fail to enforce it. On the other hand, Congress can and does create statutory rights through legislation, and is free to create as vigorous or as weak an enforcement mechanism for them as it wishes.

Re: Regarding Marcus Hutchins aka MalwareTech

#138

Post by humanrebar »

wildmusings wrote: post #137
humanrebar wrote: post #134

Earlier quoted context omitted.

So there needs to be legislative and/or executive action for that approach, sure. But the underlying point is that the argument for evidence exclusion is a procedural one, which means that innovation on the incentives side of things (carrots or sticks) is entirely possible. What concerns me is that there seems to be a resignation to a false dichotomy between partially informed jurors and abusive trials. I'm not convi…

> So there needs to be legislative and/or executive action for that approach, sure. But the underlying point is that the argument for evidence exclusion is a procedural one, which means that innovation on the incentives side of things (carrots or sticks) is entirely possible. In the UK, these rights are merely statutory and exist at the discretion of Parliament (the doctrine of Parliamentary Sovereignty). If Parliame…

There's nothing about the exclusionary principle in the Constitution. It lays out rights but doesn't say much about what happens if they are violated.

> The courts will not allow the Fourth Amendment to become inoperative because Congress and the President fail to enforce it.

Again, this is a false choice. Other countries make sure prevailing law is enforced without the exclusionary principle.

And other amendments are enforced without compromising the pursuit of truth in the courtroom. There are no enforcement mechanisms for the first amendment in the Constitution, but it gets enforced.

Re: Regarding Marcus Hutchins aka MalwareTech

#139

Post by dexterdog »

TazeTSchnitzel wrote: post #65
dexterdog wrote: post #63

Earlier quoted context omitted.

If anybody watched what they did to Russ Ulbrecht they have a reason to be skeptical. The funny part is that they clearly didn't get the concept of the Dread Pirate Roberts.

There was a clear case against Ross Ulbr i cht.

If you believe in that sort of stuff, I suppose, but so much of the evidence was "found" on his laptop with forensic professionalism that would have made the OJ prosecution look competent.

Re: Regarding Marcus Hutchins aka MalwareTech

#140

Post by dexterdog »

wildmusings wrote: post #66
dexterdog wrote: post #63

Earlier quoted context omitted.

If anybody watched what they did to Russ Ulbrecht they have a reason to be skeptical. The funny part is that they clearly didn't get the concept of the Dread Pirate Roberts.

> If anybody watched what they did to Russ Ulbrecht they have a reason to be skeptical You mean the guy who ran a massive illegal drug marketplace, and who tried to have people killed to protect it?

Allegedly.
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