Comment by Guvante
19 hours ago
How are they going to prove there was evidence of a crime? While destruction of potential evidence does introduce a certain amount of leeway that doesn't allow going from absolutely nothing to "evidence was on the wiped device".
Most previous court cases involving encrypted devices have required substantial proof that the encrypted device contained incriminating evidence. To be clear "you sent this illegal thing from your house" levels of evidence.
It mostly seems inept, if you are going to push to expand your powers you do it on strong cases where you know what happened. Doing it on weak cases like this gives a judge an opportunity to shut down that without giving you a chance of a meaningful conviction and without that you won't get any benefits...
>How are they going to prove there was evidence of a crime?
They don't have to, only that you destroyed evidence. That's why many people get prosecuted with "obstruction of justice" rather than the actual crime.
>While destruction of potential evidence does introduce a certain amount of leeway that doesn't allow going from absolutely nothing to "evidence was on the wiped device".
So if someone was doing insider trading, and the SEC came knocking, then immediately afterwards they start burning every document they have and microwaving their computers, do you think they should get off the hook? Surely you must think, even if the authorities or society can't a priori know you were guilty, the subsequent activity should be illegal? Note this isn't the same as banning burning documents or microwaving computers, only doing so after you're aware there's an ongoing investigation.
They need to prove you destroyed evidence, you have the mens rea component with the deceptive pin code but the defense can simply plainly say they didn't want the police to read their private device.
Your example is fabricated since the justice department didn't even bring forward a specific crime they believe was committed here.
If they charged him with a crime and had evidence his device had evidence of that crime (even if in reality it didn't) that would be a more interesting question.
But again where is the crime?
> But again where is the crime?
Destruction or removal of property to prevent seizure.
CBP are empowered to search US citizens devices and, if the citizen refuses to comply, to seize that device. They'll be alleging that by knowingly providing CBP with a duress PIN he destroyed his own property to prevent its seizure.
Notably, they don't need to prove he destroyed evidence of anything.
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>with the deceptive pin code but the defense can simply plainly say they didn't want the police to read their private device.
That's as convincing as saying you burned all the documents because you don't want people who break in to read all your financial records. It just happened to start after the SEC came knocking
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It is evidence. Something can be evidence even if the evidence does not prove any crime.
Destroyed evidence of what?
Destroyed materials that might be relevant to an investigation that you know exists.
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To quote the article: suspected terrorism activities because of his alleged association with the movement against Cop City
Complete horseshit on many levels, but presumably a legally valid investigation.
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You have to prove it is an evidence of a crime to start with, speculation is not a fact. My property, my business, i can smash the phone and no one has anything to do or say unless there’s an undeniable fact that there’s an evidence there and it got destroyed, else, it’s no one’s business.
>Note this isn't the same as banning burning documents or microwaving computers, only doing so after you're aware there's an ongoing investigation.
> So if someone was doing insider trading, and the SEC came knocking, then immediately afterwards they start burning every document they have and microwaving their computers, do you think they should get off the hook?
Apples and oranges. They presumably already have some sort of evidence in order to get a warrant and are under criminal investigation.
According to the article the agents said it was just a normal part of screening.
>They presumably already have some sort of evidence in order to get a warrant and are under criminal investigation.
What if there was no warrant, and the SEC just came to ask questions?
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Well, good luck to them. If I'm on the jury and he argues "I got my passcodes confused" that's reasonable doubt for me.
I'm not a lawyer, but my work domain revolves around data analysis of certain types of crime. Often times the suspects are flagged and under surveillance, so if and when they cross borders or go through check-points where you have a great deal of authority, they'll get searched.
In many countries certain agencies / agents can do searches which normal law enforcement officers can't. Like not needing a search warrant or even probable cause. Not to mention that wiping a device could in itself be a crime, if it is suspected that evidence is being destroyed.
The key point here is that, as I wrote, some agencies have a lot of authority, and have the power to do pretty drastic stuff.
The career prosecutors at the DoJ are not the same as a couple years ago. I hope this case ends the same way as the sub sandwich assault.
They are not sending their finest to court it seems.
If your legal system depends on the benevolence of prosecutors, you've already lost before it began.
Attorneys are supposed to be adversarial. The system's soundness shouldn't depend on anything more than them trying to win and not doing anything illegal.
Before "prosecutor" became an elected/appointed office, prosecutors were independent contractors, hired for a single case only and serving at the pleasure of the Grand Jury. The Grand Jury's job was to decide how to spend the public prosecution budget. "Indictment" meant exactly that "prosecuting this person is a good use of tax dollars" and nothing more. We should go back to that.
Any system ultimately depends on the benevolence (or at least the decency) of the people in it. The idea that a society can design a perfect system and it will run itself is very dangerous.
The comment you're replying to was focused on prosecutorial incompetence, not benevolence.
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