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sotomayor is a "law and order' type. but you can keep hoping.
You should check out her opinion in Jones.
sotomayor is a big 1st amendment proponent. she almost never infringes on speech.
but... this from the comments about her from the bar when she was nominated to the high court:
In a conference call, Alliance for Justice Legal Director William Youmans called the former prosecutor "a strong law-and-order judge," adding that she is "attentive, at times, to the rights of the criminal defendant."
Conversely, Grossman said that during her 2nd Circuit confirmation hearings, Sotomayor was criticized for giving sentences that "consistently hit the lower end" of federal guidelines.
In a memo, Wendy E. Long, counsel for the conservative Judicial Confirmation Network, calls the nominee a "soft-on-crime judge who twists the law ... and avoids binding precedent."
The Congressional Research Service pointed out that Sotomayor has sided with both the government and defendants. Overall, the agency thought her criminal law record shows a strict adherence to precedent.
Judging the judge: groups weigh in on Sotomayor
Honestly, that is what I was wondering about as well. I don't see that the government has any right whatsoever to require you to do their work for them. What really throws me though is that I can't see why they can't simply break the encryption themselves. Uncle Sam has some pretty amazing abilities when it comes to breaking encryption and I would find it hard to believe that they are unable to do so in this case. For me, requiring anything of her is a violation of her rights but forcing the data out themselves (with the warrant they obtained of course) is entirely within their rights.If I was her I'd say I forgot the password.
No. A computer can contain all sorts of things that are actually irrelevant to the prosecution, it is more like them going into your house and taking your diary and/or journal.
which they'd be allowed to search if they had a warrant to do so.
same as here.
If they have a warrant for the contents of the laptop they can search it without her cooperation.
which they'd be allowed to search if they had a warrant to do so.
same as here.
If they have a warrant for the contents of the laptop they can search it without her cooperation.
Yes, but that appears to be the core issue here - when they can't search it without her cooperation, should she be FORCED to cooperate, or is it game over for the feds at that point if she refuses?
There is an interesting thing going on now in our criminal courts in Southern California that is somewhat akin to the subject matter of this thread. When someone pleads guilty to driving under the influence, they are asked, on the record during the plea, whether they understand that driving under the influence is very dangerous and if they should happen to kill someone in the future while driving drunk, they can be charged with murder.
If the defendant answers, "Yes, I understand that," they have just provided the prosecution with the basis for a Watson murder prosecution if they should happen to kill someone while driving under the influence at some time in the future, where that basis might not otherwise have existed.
So - is requiring them to answer that question a violation of their 5th Amendment right against self incrimination? Yup, it sure is. So we advise our clients ahead of time NOT to respond to that question in any way when it is asked of them during the taking of the plea.
which they'd be allowed to search if they had a warrant to do so.
same as here.
If they have a warrant for the contents of the laptop they can search it without her cooperation.
Yes, but that appears to be the core issue here - when they can't search it without her cooperation, should she be FORCED to cooperate, or is it game over for the feds at that point if she refuses?
There is an interesting thing going on now in our criminal courts in Southern California that is somewhat akin to the subject matter of this thread. When someone pleads guilty to driving under the influence, they are asked, on the record during the plea, whether they understand that driving under the influence is very dangerous and if they should happen to kill someone in the future while driving drunk, they can be charged with murder.
If the defendant answers, "Yes, I understand that," they have just provided the prosecution with the basis for a Watson murder prosecution if they should happen to kill someone while driving under the influence at some time in the future, where that basis might not otherwise have existed.
So - is requiring them to answer that question a violation of their 5th Amendment right against self incrimination? Yup, it sure is. So we advise our clients ahead of time NOT to respond to that question in any way when it is asked of them during the taking of the plea.
If they have a warrant for the contents of the laptop they can search it without her cooperation.
Yes, but that appears to be the core issue here - when they can't search it without her cooperation, should she be FORCED to cooperate, or is it game over for the feds at that point if she refuses?
There is an interesting thing going on now in our criminal courts in Southern California that is somewhat akin to the subject matter of this thread. When someone pleads guilty to driving under the influence, they are asked, on the record during the plea, whether they understand that driving under the influence is very dangerous and if they should happen to kill someone in the future while driving drunk, they can be charged with murder.
If the defendant answers, "Yes, I understand that," they have just provided the prosecution with the basis for a Watson murder prosecution if they should happen to kill someone while driving under the influence at some time in the future, where that basis might not otherwise have existed.
So - is requiring them to answer that question a violation of their 5th Amendment right against self incrimination? Yup, it sure is. So we advise our clients ahead of time NOT to respond to that question in any way when it is asked of them during the taking of the plea.
Has that been tested in the courts yet, George? Seems to me you can't elicit a confession to a future crime. I can see where it would be used for liability purposes in a civil case.I can even see where they can use it to up charges by adding recklessness. But that seems problematic in the criminal context.
If they have a warrant for the contents of the laptop they can search it without her cooperation.
Yes, but that appears to be the core issue here - when they can't search it without her cooperation, should she be FORCED to cooperate, or is it game over for the feds at that point if she refuses?
There is an interesting thing going on now in our criminal courts in Southern California that is somewhat akin to the subject matter of this thread. When someone pleads guilty to driving under the influence, they are asked, on the record during the plea, whether they understand that driving under the influence is very dangerous and if they should happen to kill someone in the future while driving drunk, they can be charged with murder.
If the defendant answers, "Yes, I understand that," they have just provided the prosecution with the basis for a Watson murder prosecution if they should happen to kill someone while driving under the influence at some time in the future, where that basis might not otherwise have existed.
So - is requiring them to answer that question a violation of their 5th Amendment right against self incrimination? Yup, it sure is. So we advise our clients ahead of time NOT to respond to that question in any way when it is asked of them during the taking of the plea.
What if they happen to be a lawyer, or just a smart ass, and respond that they actually understand that it isn't murder?
The Watson Murder Rule generally applies where the DUI defendant has PRIORS. Not where he's asked under oath if he knows that driving drunk is dangerous.
California DUI Murder a.k.a. The Watson Murder Rule! - Avvo.com
“Watson Murder” prosecutions are generally, but not exclusively, applied to individuals with prior DUI convictions. An individual's prior conviction(s) often makes it are easier to prove "implied malice" because their prior conviction puts them on notice of the inherent dangers of drinking and driving. In almost all cases, the person has already attended alcohol educations classes where they learned about the dangers of drinking and driving. As such, what the person may not have known the first time they got a DUI, cannot be said for the second or subsequent DUI.
As a matter of fact, in an effort to make future Watson Murder prosecutions easier, all California courts, including all Los Angeles and Orange County DUI courts, require a defendant to sign a waiver advising them of the dangers of DUI and the potential consequences if they do it again and hit and kill someone in the process. The advisement is referred to as "The Watson Advisement" which states as follows:
The Watson Waiver
I understand that being under the influence of alcohol or drugs, or both, impairs my ability to safely operate a motor vehicle. Therfore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If I continue to drive while under the influence of alcohol or drugs, or both, and as a result of my driving, someone is killed, I can be charged with murder.
This is the Watson waiver and all DUI defendants are required to sign it.
The Watson Murder Rule generally applies where the DUI defendant has PRIORS. Not where he's asked under oath if he knows that driving drunk is dangerous.
California DUI Murder a.k.a. The Watson Murder Rule! - Avvo.com
Watson Murder prosecutions are generally, but not exclusively, applied to individuals with prior DUI convictions. An individual's prior conviction(s) often makes it are easier to prove "implied malice" because their prior conviction puts them on notice of the inherent dangers of drinking and driving. In almost all cases, the person has already attended alcohol educations classes where they learned about the dangers of drinking and driving. As such, what the person may not have known the first time they got a DUI, cannot be said for the second or subsequent DUI.
As a matter of fact, in an effort to make future Watson Murder prosecutions easier, all California courts, including all Los Angeles and Orange County DUI courts, require a defendant to sign a waiver advising them of the dangers of DUI and the potential consequences if they do it again and hit and kill someone in the process. The advisement is referred to as "The Watson Advisement" which states as follows:
The Watson Waiver
I understand that being under the influence of alcohol or drugs, or both, impairs my ability to safely operate a motor vehicle. Therfore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If I continue to drive while under the influence of alcohol or drugs, or both, and as a result of my driving, someone is killed, I can be charged with murder.
This is the Watson waiver and all DUI defendants are required to sign it.
Whoever wrote this is dead wrong. DUI defendants are not "required" to sign or acknowledge a Watson waiver. If they were, it would be an unconstitutional invasion of their 5th Amendment right agains self incrimination.
I plead felony DUI defendants guilty on a regular basis. As a matter of fact, I did so only half an hour ago in a serious, VC 23153(a) case. Acting under my instructions, the defendant did not initial the Watson waiver portion of the Tahl waiver form nor did he respond to the oral advisement given to him at the time of his plea. The procedure when this happens is for the judge to state on the record that the defendant was given the Watson advisement in open court, that the defendant was present in open court when it was given and that he appeared to hear and understand it.
I find your statement that defendants are "required" to acknowledge the Watson advisement "in an effort to make future Watson murder prosecutions easier," most amusing. If "making criminal prosecutions easier" was the only test applied to police/prosecution actions, we could just do away with the state and federal constitutions and let the police and prosecutors do whatever they needed to "make prosecutions easier" for them, now couldn't we?
Happily, such is not the case.
The Watson Murder Rule generally applies where the DUI defendant has PRIORS. Not where he's asked under oath if he knows that driving drunk is dangerous.
California DUI Murder a.k.a. The Watson Murder Rule! - Avvo.com
“Watson Murder” prosecutions are generally, but not exclusively, applied to individuals with prior DUI convictions. An individual's prior conviction(s) often makes it are easier to prove "implied malice" because their prior conviction puts them on notice of the inherent dangers of drinking and driving. In almost all cases, the person has already attended alcohol educations classes where they learned about the dangers of drinking and driving. As such, what the person may not have known the first time they got a DUI, cannot be said for the second or subsequent DUI.
As a matter of fact, in an effort to make future Watson Murder prosecutions easier, all California courts, including all Los Angeles and Orange County DUI courts, require a defendant to sign a waiver advising them of the dangers of DUI and the potential consequences if they do it again and hit and kill someone in the process. The advisement is referred to as "The Watson Advisement" which states as follows:
The Watson Waiver
I understand that being under the influence of alcohol or drugs, or both, impairs my ability to safely operate a motor vehicle. Therfore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If I continue to drive while under the influence of alcohol or drugs, or both, and as a result of my driving, someone is killed, I can be charged with murder.
This is the Watson waiver and all DUI defendants are required to sign it.
Whoever wrote this is dead wrong. DUI defendants are not "required" to sign or acknowledge a Watson waiver. If they were, it would be an unconstitutional invasion of their 5th Amendment right agains self incrimination.
I plead felony DUI defendants guilty on a regular basis. As a matter of fact, I did so only half an hour ago in a serious, VC 23153(a) case. Acting under my instructions, the defendant did not initial the Watson waiver portion of the Tahl waiver form nor did he respond to the oral advisement given to him at the time of his plea. The procedure when this happens is for the judge to state on the record that the defendant was given the Watson advisement in open court, that the defendant was present in open court when it was given and that he appeared to hear and understand it.
I find your statement that defendants are "required" to acknowledge the Watson advisement "in an effort to make future Watson murder prosecutions easier," most amusing. If "making criminal prosecutions easier" was the only test applied to police/prosecution actions, we could just do away with the state and federal constitutions and let the police and prosecutors do whatever they needed to "make prosecutions easier" for them, now couldn't we?
Happily, such is not the case.
I gave you a link. Fight with them.
You're a paralegal aren't you?
Yes, but that appears to be the core issue here - when they can't search it without her cooperation, should she be FORCED to cooperate, or is it game over for the feds at that point if she refuses?
There is an interesting thing going on now in our criminal courts in Southern California that is somewhat akin to the subject matter of this thread. When someone pleads guilty to driving under the influence, they are asked, on the record during the plea, whether they understand that driving under the influence is very dangerous and if they should happen to kill someone in the future while driving drunk, they can be charged with murder.
If the defendant answers, "Yes, I understand that," they have just provided the prosecution with the basis for a Watson murder prosecution if they should happen to kill someone while driving under the influence at some time in the future, where that basis might not otherwise have existed.
So - is requiring them to answer that question a violation of their 5th Amendment right against self incrimination? Yup, it sure is. So we advise our clients ahead of time NOT to respond to that question in any way when it is asked of them during the taking of the plea.
What if they happen to be a lawyer, or just a smart ass, and respond that they actually understand that it isn't murder?
Because that is not what they are being asked.
No. A computer can contain all sorts of things that are actually irrelevant to the prosecution, it is more like them going into your house and taking your diary and/or journal.
The same Fourth Amendment principles that apply to other kinds of searches apply to
computer searches. The search and seizure must not only be reasonable, but must be performed pursuant to a warrant, issued on probable cause and particularly describing the place to be searched and the things to be seized. E.g., Mincey v. Arizona, 437 U.S. 385, 390 (1987). In a rare case, one of the few exceptions to the warrant requirement may apply. Id. The scope of the search may not exceed the scope of the warrant or the applicable exception to the warrant requirement, or, in any case, the bounds of probable cause. Maryland v. Garrison, 480 U.S. 79, 84 (1987); Walter v. United States, 447 U.S. 649, 656-57 (1980).
http://www.fjc.gov/public/pdf.nsf/lookup/ElecDi17.pdf/$file/ElecDi17.pdf
