From: "Gerard D. Cochrane Jr." <gdcochra@utep.edu>
Date: Sun, 29 Sep 1996 19:04:03 +0800
To: Brian Davis <bdavis@thepoint.net>
Subject: Re: "Confessing to a felony"
In-Reply-To: <Pine.BSF.3.91.960929015322.6668L-100000@mercury.thepoint.net>
Message-ID: <Pine.HPP.3.95.960929025720.7234C-100000@mail.utep.edu>
MIME-Version: 1.0
Content-Type: text/plain


On Sun, 29 Sep 1996, Brian Davis wrote:

> On Fri, 27 Sep 1996, Timothy C. May wrote:
> 
> > At 5:43 PM -0400 9/27/96, Black Unicorn wrote:
> > >On Thu, 26 Sep 1996, Timothy C. May wrote:
> > 
> > >His admission that he used the notebook.  Recovering the notebook and
> > >finding the software.  Interviewing the Customs agent working at the time.
> > 
> > His admission that he used _which_ notebook? Chain of evidence again.
> > 
> > Finding _which_ software?
> > 
> > (As for the Customs agent, I can assure you that my luggage has never been
> > checked upon either leaving the U.S. or entering the U.S. Even if U.S.
> > Customs could figure out who was working at the time I putatively entered
> > the country, and even if he remembered _me_, months later, just what
> > records would he have, and how would they stand up in court?)
> > 
> > Hearing me say I "exported crypto," a hearsay claim, and happening to find
>                                       ^^^^^^^^^^^^^^^
> It is an admission against interest and a confession; it is admissible 
> against the speaker in a prosecution against him for "exporting crypto"
> from a strictly evidentiary standpoint.
> 
> > one or more laptops at my home, weeks or months later, implies nothing. (To
> > make the point graphically, suppose the raiding party finds _several_
> > laptops or notebooks...do they assume _all_ were taken out of the country,
> > or do they pick the one with the most incriminating software on it? Answer:
> > Unless they can _prove_ one of them was used, and that it had not been
> > _changed_ since the putative event (highly unlikely), they cannot simply
> > _assume_ one of them was taken out.
> 
> Your understanding of evidence is inaccurate.  The evidence re the 
> laptop[s] would be admissible and the parties would argue about what it 
> meant.  The jury is entitled to draw common sense inferences.  That might 
> be easy to do in a case in which a defendant has confessed....
> 
> 
>  
> > (Seems to me to be an open and shut case. "Oh, _that_ laptop? That's not
> > the one I took to Europe."   "Oh, you say this laptop has PGP 5.9 on it?
> > So? I installed it last week. My trip to Europe was last summer.")
> 
> So now you, as your own lawyer (apparently) have decided to take the 
> stand and testify.  Remember that the prosecutor gets to cross-examine 
> you.  Things are about to get ugly.... 
> 
> 
> > 
> > >Considering the headaches required for airline travel today, it's not like
> > >there aren't serious records abound.
> > 
> > Such as? I recall no inspections of my luggage, no inventorying of the
> > serial numbers of my laptops, no inspection whatsoever of my
> > magneto-optical drives (which were in my carry-on luggage, and not even
> > glanced at, in the box they were in). X-rays would not prove what was taken
> > in or out of the country, even if "x-ray escrow" were implemented (which it
> > is not, according to all reports I have heard, and based on some practical
> > limits on storage), I doubt the records of a trip, say, last summer (of
> > '95) could be retrieved and prove that a particular laptop was taken out.
> > Not to mention that the software allegedly taken out might have been on any
> > kind of media, none of them distinguishable with an x-ray machine.
> 
> Circumstantial evidence is admissible if probative of a fact at issue in 
> the case.  Evidence that you took a laptop out of the country is 
> probative of the allegation that you exported crypto using a laptop.
> 
> 
> 
> > >For crying outloud, he admitted to the world that he took the software
> > >out.  I put that in front of a jury and it looks just like the typical
> > 
> > "For crying out loud" is bluster, not legal argument.
> 
> And your understanding of evidence shows a misunderstanding of how the 
> rules of evidence actually work in a courtroom. 
> 
> 
> > >stupid bragging criminal.  Any defense about "I was just kidding" or "The
> > >message was forged" might be interesting, but it will sound like
> > >technical-mumbo-jumbo to a jury.  Yes, it would convince >ME< that was a
> > 
> > Legal proof is still needed. Given only a nebulous statement like "I
> > exported crypto in violation of the ITARs," or "I shipped PGP to Europe,"
> > is not enough for a case even to be brought to trial.
> 
> You are absolutely wrong.  It may not be enough for a conviction, but it 
> will beat a Rule 29 motion (Motion for a judgment of acquittal) and get 
> the case to the jury.
> 
> > (If it reached trial, I would expect a defense attorney to move for
> > dismissal. Absent any evidence that a crime occurred, absent any proof
> > beyond the nebulous hearsay statement of a "braggart," there is simply no
> > basis for criminal action.)
> > 
> > "Stupid bragging criminals" may be common, but bragging is not in and of
> > itself illegal. There still has to be evidence of a crime.
> 
> Must a jury believe that you were "just bragging" because you now, in a 
> criminal trial, say that you were? 
> 
> 
> > "Produce the body."
> 
> Perry Mason is only active in re-runs.
> 
> > 
> > (I can say I personally whacked Jimmy Hoffa. Absent other evidence, or the
> > body, or witnesses, does this mean I'll be found guilty? To use BU's
> > phrasing, "for crying out loud.")
> 
> That's where prosecutorial discretion comes in and a judge's and jury's 
> common sense comes in if the prosecutor runs amok.
> 
> BTW, I am far more willing to believe you were bragging about whacking 
> Jimmy Hoffa than about exporting crypto.  Think of all the interesting 
> evidence from this mailing list's archives that prosecutors would attempt 
> to introduce against you ...
> 
> Not to say that *I* couldn't get you off, but not the way you propose.
> 
> EBD
> 
> 
> 
> > --Tim May
> > 
> > We got computers, we're tapping phone lines, I know that that ain't allowed.
> > ---------:---------:---------:---------:---------:---------:---------:----
> > Timothy C. May              | Crypto Anarchy: encryption, digital money,
> > tcmay@got.net  408-728-0152 | anonymous networks, digital pseudonyms, zero
> > W.A.S.T.E.: Corralitos, CA  | knowledge, reputations, information markets,
> > Higher Power: 2^1,257,787-1 | black markets, collapse of governments.
> > "National borders aren't even speed bumps on the information superhighway."
> > 
> > 
> > 
> > 
> > 
> 


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