From: Hal <hfinney@shell.portal.com>
Date: Tue, 16 Apr 1996 06:03:54 +0800
To: unicorn@schloss.li
Subject: Re:  What can the judge do to me?
Message-ID: <199604151721.KAA03490@jobe.shell.portal.com>
MIME-Version: 1.0
Content-Type: text/plain


From: Black Unicorn <unicorn@schloss.li>
> I've been involved in a private discussion with a list reader about 
> the extent to which courts can impose contempt fines and sanctions.  I 
> thought I would post the results to the list as many have expressed 
> interest in the ways that courts might try to compel production of 
> crypto keys or compel offshore e-cash institutions.  The bulk of my 
> answer follows.

I thought this was very interesting and I appreciate Unicorn taking the
time to lend us his expertise.

> The key to limiting the ability of a court to summarily enter contempt 
> sanctions has always been the classification of the sanctions.  
> "Criminal" sanctions, may entitle the witness to a trial by jury.
> [...]
> "Civil" sanctions do 
> not require such protections and can be imposed on the spot and 
> without review.

I didn't understand what distinguishes civil and criminal sanctions.  Is
it the nature of the proceedings, whether it is a civil or criminal case
that is before the judge?  Or is it the nature of the contempt charge
itself, where not doing what the judge wants, in broad terms, is civil
contempt?  And in that case, what would be criminal contempt?

> The court makes a point to justify severe sanctions where testimony is 
> sought, or the proceedings are threatened.  "The necessity 
> justification for the contempt authority is at its pinnacle, of 
> course, where contumacious conduct threatens a court's immediate 
> ability to conduct its proceedings, such as where a witness refuses to 
> testify, or a party disrupts the court... [t]hus, petty, direct 
> contempts in the presence of the court traditionally have been subject 
> to summary adjudication, 'to maintain order in the courtroom and the 
> integrity of the trial process in the face of an 'actual obstruction 
> of justice.'"  International Union, supra (quoting Codispoti v. 
> Pennsylvania, 418 U.S., at 513 and citing numerous other sources).

Would there be a distinction between contempt by a witness and that by
the defendant (in a criminal case)?  I could see justification for
attempting to compel testimony from a witness who can shed needed light
on guilt or innocence in the case.  A man's freedom or perhaps his very
life is at stake.  But it seems to be another matter to compel the
defendant himself to provide some information which will be detrimental
to himself.

The defendant has some Fifth Amendment rights, but for those cases
where what he is ordered to do has been found not to be protected by
the Fifth Amendment it still seems bizarre to imagine him jailed for
contempt if he refuses.  Are there precedents for holding a defendant in
contempt for standing mute at his own trial?

(Part of my problem with this scenario is my sense that despite gradual
erosion of the rights against self incrimination, verbally revealing a
pass phrase which will unlock an encrypted document seems like
testimony, and something which should be protected.  Is there such a
difference between "Reveal the pass phrase" and "Reveal what you did with
the knife", if the judge doesn't believe the denials of the ability to
comply?)

> Most interesting to the crypto crowd:
> 
> "Contempts such as failure to comply with document discovery, for 
> example, while occurring outside the court's presence, impede the 
> court's ability to adjudicate the proceedings before it and thus touch 
> upon the core justification for the contempt power....  Similarly, 
> indirect contempts involving discrete, readily ascertainable acts, 
> _such as turning over a key_ or payment of a judgment, properly may be 
> adjudicated through civil proceedings since the need for extensive, 
> impartial fact-finding is less pressing."  International Union, supra 
> (emphasis added).

I would guess that "turning over a key" here refers not to production to
the court by rather to passing a physical key between two contesting
parties, say a seller and buyer of some property that the key gives
access to.  The phrase "turning over" rather than "production of" suggests
this interpretation.  So this sounds like something which would be more
likely to occur in a civil proceeding than a criminal one.

Hal