From: jim bell <jimbell@pacifier.com>
Date: Sun, 21 Apr 1996 06:44:00 +0800
To: tcmay@got.net
Subject: Re: 5th protect password?
Message-ID: <m0uAiWV-00091CC@pacifier.com>
MIME-Version: 1.0
Content-Type: text/plain


At 03:33 PM 4/19/96 -0800, Roger  Schlafly wrote:

>Is this really an issue?  I am not an expert, but I just read a
>Supreme Court case:
>
>   DOE v. United States, 487 U.S. 201; 108 S. Ct. 2341 (1988)
>
>It involved someone who was ordered by the court to consent to the
>Cayman Islands bank to turn over account records.  The Supreme
>Court said yes, because it is "more like 'be[ing] forced to
>surrender a key to a strongbox containing incriminating documents'
>than it is like 'be[ing] compelled to reveal the combination to
>[petitioner's] wall safe.'"
>
>The quote refers to Stevens' dissent, which said:
>
>   A defendant can be compelled to produce material evidence that
>   is incriminating.  Fingerprints, blood samples, voice
>   exemplars, handwriting specimens, or other items of physical
>   evidence may be extracted from a defendant against his will.


As you might expect, I see a problem (and a pattern!) with even these 
examples.  Notice that with the possible exception of "handwriting 
specimens", the examples above all represent pieces of evidence whose 
utility was only made technologically possible by developments done more 
than a century after the writing of the Constitution.  Fingerprints have 
only come into use in this century, voiceprints only in the last 30 or so 
years, blood samples were only uniquely identifiable within the last 10-15 
or so, etc.  I think even graphology (handwriting analysis) for legal 
purposes is likewise comparatively recent, although there is no obvious 
technological reason which this should have been so.  The last category, 
"other items of physical evidence" is too unspecific to interpret.

The problem?  Well, with the exception of the polygraph (whose reliability 
is severely (!) in doubt), I can't think of another technology which has 
been denied to cops by refusing their insistence on being given evidence.  
The implication, unfortunately, is that whereever a new technology pops up, 
the courts regularly ignore the fifth amendment, finding some excuse to 
insist that a defendant provide evidence.  This really isn't surprising:  
Remember, the Constitution was written by _revolutionaries_, while the 
infringements on that Constitution are done by _bureaucrats_.  Any 
bureaucratic interpretation of the Constitution is inherently flawed;  the 
proper, "revolutionary" interpretation of the 5th amendment is that a 
defendant should in no way be required to cooperate with the prosecution if 
the results of that cooperation could conceivably be used to convict him.

Anyone who denies this should be required to make a list of the kinds of 
evidence which was regularly demanded of a 1783-era defendant.

Jim Bell
jimbell@pacifier.com