Someone who is a lawyer knows any details about the US justice systems precedents with regards to the fifth amendmend (regards to self incrimination) vs obstruction of justice (by destroying evidence) as would be applicable to a duress wipe? Also would the distinction of being (or not) read their miranda rights and placed under arrest in this case make a difference as to the status of any possible obstruction?

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iamnothere 2 days ago | parent | next [-]

Not a lawyer, but my understanding is that refusal to give the PIN (“remaining silent”) would be a valid application of the 5th, but not giving a false PIN. 5th does not imply the right to mislead or lie to someone investigating a crime.

Not clear on anything else regarding the duress PIN but I don’t think a 5th defense would apply.

Note that you apparently have to explicitly invoke your right to remain silent or your silence could be implied as an admission of guilt (thanks to Salinas v. Texas). I imagine you’d have to repeat your assertion multiple times, and the person demanding the PIN will tell you that you can’t use the 5th, will threaten you with arrest and additional charges, etc. Consult a lawyer and get training if you’re doing critical work where you may need this defense.

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tracker1 2 days ago | parent | next [-]

I'm mixed... if they really thought there was evidence on the phone, they should have seized the phone and acquired a warrant IMO to compel the valid, non-destructive PIN be given over.

As I mentioned earlier, this is part of why my own plans for international travel are to only go with a notebook/sheet with contact numbers and buy throwaway devices on the other side. I don't think I'd travel internationally with a phone or laptop at this point, and that's kind of been my thoughts for a while. Especially given the direction that many countries, not just the US have taken. For that matter, I don't think I'd ever even risk travelling to the UK or China at this point. Not that I like the surveillance state here in the US, at least I still have some rights preserved.

	▲	papercrane 2 days ago \| parent [-]
		> acquired a warrant IMO to compel the valid, non-destructive PIN be given over. Compelling a PIN, even with a warrant, is legally questionable. Courts have held that it is a form of 'testimony' because it's compelling you to disclose something you know, while some state courts have ruled the opposite way. In all likelihood the government wouldn't push it in this instance, to avoid creating any sort of precedent.

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whizzter 2 days ago | parent | prev [-]

Hmm, interestingly here in Sweden we have "free evidence" (way of gathering is not considered even if "illegal", however someone doing something illegal to obtain it could instead be charged separately).

As such in a case like the Salinas one, being silent or "pleading the fifth" would be moot as both would just indicate "deafening silence" to the judges since the defendant had been cooperative up until that point.

(the Swedish judicial system has no juries, instead there's a professionally learned judge and 2 "laymen judges" appointed from political parties acting as the peoples representatives, if that triumvirate fucks up, higher courts can and often will kick rulings back down for retrials).

	▲	iamnothere 2 days ago \| parent [-]
		Interesting, did not know this. The “right to remain silent” has a long history here, and I think it’s important. The biggest reason for its continued existence, IMHO, is to shut down overly aggressive, threatening, or manipulative questioning. It’s easy for trained investigators to bully someone into a false confession, or even just a misstatement that could be turned against them. Having the right to shut up and pass future answers through a lawyer makes perfect sense in the face of this.

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CountHackulus 2 days ago | parent | prev | next [-]

According to Homeland Security, within 100 miles of the border is a "constitution free zone". So there's a whole lot to unpack before we even get to miranda rights.

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tsimionescu 2 days ago | parent | prev [-]

The moment you start talking, you're no longer using your 5th amendment rights. And anything that you tell an officer that is not truthful, such as providing the wrong password, can be considered a crime in itself. Even claiming you are innocent can be considered a separate crime if you are not proven innocent later on.

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iamnothere 2 days ago | parent [-]

You can decide to apply your 5th amendment right at any time, you just have to be explicit that you’re doing so (Salinas v. Texas). And then you have to stand strong in the face of attempts to get you to continue talking.

	▲	tsimionescu 2 days ago \| parent [-]
		Oh, yes, I just meant that as long as you're saying things, your speech is not protected by the 5th amendment. Not that if you've started speaking you can no longer stop and invoke the 5th later.