From: jim bell <jimbell@pacifier.com>
Date: Sun, 21 Apr 1996 15:21:03 +0800
To: Jonathon Blake <grafolog@netcom.com>
Subject: Re: 5th protect password?
Message-ID: <m0uAq1k-00091WC@pacifier.com>
MIME-Version: 1.0
Content-Type: text/plain


At 02:22 AM 4/21/96 +0000, Jonathon Blake wrote:
>	Jim:
>
>On Sat, 20 Apr 1996, jim bell wrote:
>
>> >   DOE v. United States, 487 U.S. 201; 108 S. Ct. 2341 (1988)
>
>> >   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 
>	
>	The pattern is that you are again ignoring legal realities.

No, I am not "ignoring legal realities."  I am NOTING them, and noting that 
they form a suspicious pattern.  I do not deny that these items are 
currently  demanded regularly in certain cases; what I challenge is the 
appropriateness of that demand by historical and Constitutional standards.  


>> examples.  Notice that with the possible exception of "handwriting 
>> specimens", the examples above all represent pieces of evidence whose 
>
>	Handwriting as a tool used by most people, dates back to
>	Eighteenth Century.  Before that, it was a trade practiced
>	by scribes, and priests. In Europe, outside of the Clergy,
>	illiteracy was the standard, till the begining of the Industrial
>	Revolution.   <<   Remember that John Dee had an incredibly large
>	library of 200 volumes.  >> 

Yikes! You REALLY need to learn to read!  I wasn't referring to handwriting 
itself , or for that matter to graphology ( the study of handwriting; which 
goes back perhaps 2000 years) but in fact the _forensic_ use of graphology.  
The point is that the demanding of handwriting samples is a fairly new 
concept, at least compared with the writing of the Constitution and the 5th 
amendment.  I'm sure a REAL LAWYER (TM) reading this note will cite the 
first known example of a handwriting example being demanded by a court.  
What do you want to bet that it first occurred in this century?

>
>> 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, 
>
>	Courts have yet to rule that an individual can be forced
>	to provide a sample of their handwriting, if the purpose
>	of obtaining such a script is for a graphological profile.

Which simply means that they have to have more justification than a 
shotgun-approach inquiry.

>	More to the point, courts -- or at least US Courts -- don't
>	accept graphological profiles, as proof of anything.  

If that were the case, there there would be no justification for demanding a 
handwriting sample.  Nevertheless, it is apparently done.   And while a 
handwriting sample, ALONE, may not be "proof" of something, like most 
evidence it is used in conjunction with other evidence to support a conclusion.

In any case, the initial reference to handwriting samples came from the 
Supreme Court, as quoted above, not me.  Pay more attention.  I was using 
the commentary of the SC to show that most if not all of the kinds of 
evidence demanded of defendants were NOT demande until well over a century 
after the 5th amendment was written.


>
>	I suspect you confusing graphology with questioned document
>	examination. 

No, that's a larger issue. Graphology is a tool which can be used, but there 
are plenty of other technologies which are also useful on questioned 
documents.  Paper analysis, ink analysis, electron microscopy, text 
analysis, to name just a few.  That wasn't the point, however.

>       Courts have ruled that a person may be forced
>	to provide a sample of writing, for use in questioned document
>	examination, without violating the fifth amendment. << You ought
>	to read the case law, to see why providing such a sample is
>	not a fifth amendment violation ---- it might help you be a 
>	better armchair lawyer, who spends to much time watching
>	Perry Mason reruns.  >> 

Question:  Let's suppose, for the purposes of argument, the policy was 
diametrically opposite, and no such samples were taken, ostensibly because 
that would be in violation of the 5th amendment.   Please explain the 
arguments you would use to convince everybody that this opinion was in 
error.  Remember, you couldn't cite precedent, because all the precedent 
would come to the opposite conclusion.  You would have to explain to people 
why the precedents were all wrong.

See the problem?  Lawyers are full of "appeal to authority" arguments, which 
is what a precedent really is.  But precedents can be wrong, are wrong, and 
are occasionally changed.  I pointed out (correctly, I think) that since 
well over 100+ years after the writing of the 5th amendment, there has been a 
pattern of allowing prosecutors to demand evidence of a defendant whenever 
that evidence is considered useful to incriminate that defendant.  I pointed 
out that all of the examples listed in the quotation above represented types 
of evidence that would not have been collected in 1783, or for that matter 
1883, or even a few decades after this.  As such, there is a reasonable 
doubt that the people who wrote the constitution actually intended to allow 
this sort of thing. 

After all, the fact that a given technique is, arguably, useful cannot be 
automatically used to justify its "reasonableness."  After all, confessions 
can be useful to the cops, but that does not automatically grant the cops 
the right to beat confessions out of their prisoners, does it?  Clearly not. 
 And remember, there were a number of examples listed, so I think there is a 
suspicious pattern.  Your response does not address this issue. 


>> Anyone who denies this should be required to make a list of the kinds of 
>
>	Questined Document Examination, which you alluded to, was
>	first accepted by courts in the United States, at the turn 
>	of the century.  And it was only after World War One, that 
>	it was accepted in all courts in the US.  

I don't think that challeges anything I've already said.  And you cut off 
the part where I challenged people to show the kinds of evidence regularly 
demanded of a defendant in 1783, which was about when the 5th amendment was 
written.


>        jonathon
>        grafolog@netcom.com
>
>        Owner:     Graphology-L@Bolis-com 

Aha!  Yet another person who benefits from current government policy! 

Jim Bell
jimbell@pacifier.com