From: Mark Eckenwiler <eck@panix.com>
Date: Wed, 17 Apr 1996 16:55:02 +0800
To: wb8foz@netcom.com (David Lesher)
Subject: Re: What can the judge do to me? (fwd)
In-Reply-To: <199604122346.TAA17990@netcom13.netcom.com>
Message-ID: <199604162044.QAA02937@panix.com>
MIME-Version: 1.0
Content-Type: text/plain


+ From: Black Unicorn <unicorn@schloss.li>
+ 
+ "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 think it's clear, the court literally spells this out, that holding 
+ a witness indefinitely until he complies with court orders is within 
+ the discretion of a judge.  Compelling through sanctions the 
+ production of a "key" (though I'm not sure a crypto key is directly 
+ contemplated) is likewise clearly permitted.

Producing a physical key may or may not be testimonial under the
"production privilege" doctrine established by the Supreme Court in
Fisher and the Doe cases.  Producing a *crypto* key -- if it exists
only in one's mind -- is indisputably full-fledged Fifth Amendment
testimony.  I refer you to the language in Doe II (joined by all 9
Justices) distinguishing between "the key to a safe and the
combination to a safe" -- the latter enjoying full Fifth Amendment
protection from forced disclosure.

(The message to which I'm responding was forwarded to me, as I do not
subscribe to c-punks.  If you want me to see a reply, cc me.)