From: Black Unicorn <unicorn@schloss.li>
Date: Wed, 2 Oct 1996 19:08:15 +0800
To: Greg Broiles <gbroiles@netbox.com>
Subject: Re: "Confessing to a felony"
In-Reply-To: <3.0b19.32.19960928013142.0069aa3c@ricochet.net>
Message-ID: <Pine.SUN.3.94.961002044727.5810B-100000@polaris>
MIME-Version: 1.0
Content-Type: text/plain


On Sat, 28 Sep 1996, Greg Broiles wrote:

> At 06:30 PM 9/27/96 -0800, Tim May wrote:
> >
> >Hearing me say I "exported crypto," a hearsay claim, and happening to find
> >one or more laptops at my home, weeks or months later, implies nothing.
> >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.
> >
> >(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.
> >
> >"Produce the body."
> 
> I mostly agree re the "corpus delicti" rule (a confession must be
> corroborated by independent evidence that a crime has been committed,
> common law federally, statutory in Oregon (ORS 136.425(1)) but disagree
> with your use of "hearsay" - statements of a defendant in a criminal
> proceeding are not hearsay because they're the statements of a party
> opponent. (In federal court and in Oregon, anyway - in California they're
> hearsay but admissible as an exception. FRE 801(d)(2), ORE 801(4)(b), Cal
> Evid Code 1220.)  

In practice, its easier to use the statement against interest exception to
hearsay.


> I think the question of what *would* constitute the corpus delicti is
> interesting; the mere presence of PGP overseas shouldn't be enough. And
> evidence like PGP's presence on a laptop which had once been overseas, or
> airline ticket stubs or passport stamps or testimony from a security
> officer who remembered making the defendant turn on the laptop at the metal
> detector, or even surveillance camera footage would corroborate the
> defendant's confession but not establish that a crime was committed. Such
> evidence would seem to get us closer to the latter test mentioned in
> _Singleterry_ but wouldn't meet Oregon's test of "some other proof that the
> crime has been committed" (ORS 136.425) nor California's "the charged crime
> actually happened" (People v. Jennings (1991) 53 Cal.3d 334, 368) standard.
> But an ITAR prosecution would occur in Federal court, where evidence which
> merely corroborates the confession (instead of proving a crime) may be
> sufficient. 

Of course, going by this standard, it would also be difficult to prosecute
any crime involving, e.g., stock or wire transfers.  This is one reason
why the absolutist and the formalist schools of legal thought were
abandoned.

> (And, of course, this is all just so much jawboning. Not legal advice.
> I'm inclined to avoid confessing to crimes via the Internet whether or not
> it seems likely to lead to prosecution or conviction.

This is essentially my position, the esteemed objections of Mr. May noted
for the record.

> I've already been to
> one job interview where the employer had seen (and was unnerved) by my
> vocal presence on the net.(!?!) Which is OK with me because if I make
> someone nervous when they read Alta Vista, just wait until they meet me. :)
> It's time to get used to the idea that whatever we write may come back in
> 20 or 30 or 40 years, whether we like it or not. I think it'll teach us
> both a sense of forgiveness and a sense of discretion, but that may take
> awhile.) 

I think better discretion than reliance on the ability of others to learn
forgiveness.

Adopt a pseudonym, if you haven't already.  :)

> 
> --
> Greg Broiles                |  "We pretend to be their friends,
> gbroiles@netbox.com         |   but they fuck with our heads."
> http://www.io.com/~gbroiles |
>                             |
> 
> 

--
I hate lightning - finger for public key - Vote Monarchist
unicorn@schloss.li