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Re: "Confessing to a felony"
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,
> > [email protected] 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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