[118073] in Cypherpunks
Re: Why did White House change its mind on crypto?
daemon@ATHENA.MIT.EDU (Greg Broiles)
Sun Sep 19 00:46:38 1999
Message-Id: <4.2.0.58.19990918204857.00b5f570@mail.wenet.net>
Date: Sat, 18 Sep 1999 21:19:07 -0700
To: minow@pobox.com, Greg Broiles <gbroiles@netbox.com>
From: Greg Broiles <gbroiles@netbox.com>
Cc: cryptography@c2.net, cypherpunks@cyberpass.net
In-Reply-To: <37E283E9.2F210061@pobox.com>
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Reply-To: Greg Broiles <gbroiles@netbox.com>
At 11:09 AM 9/17/99 , Martin Minow wrote:
>Since my only legal education was from watching that trial, it
>seems to me that only a jury can decide whether a particular
>message was written by a particular individual and that it
>is the government's responsibility to provide evidence "beyond
>a resaonable doubt" to that effect.
>
>I don't see how the government can take this responsibility
>away from the jury.
You're correct - the government can't take that responsibility away from
the jury. What they're trying to do is limit the ability of the defense to
explore the techniques used by law enforcement for both their accuracy and
their acceptability in a modern society, as well as the truthfulness of the
prosecution witnesses.
Imagine the OJ Simpson trial without cross-examination of prosecution
witnesses about the evidence they found, the practices and procedures by
which they found it, and the accuracy (or lack thereof) in the
experimental/laboratory processes used to interpret it .. Mark Fuhrman
would announce that he'd found a bloody glove, the crime lab would announce
that blood on the glove matched the victims, end of story.
While the high-school civics theory of criminal trials is that jurors
should begin the trial with minds full of reasonable doubt - in fact, were
the prosecution to rest without calling a witness, every member of the jury
would ideally be prepared to immediately vote "not guilty", for lack of any
evidence in favor of guilt - it doesn't look like that in real life. As a
practical matter, it's up to the defense to create reasonable doubt, and
that's going to be a lot harder to do that if it's not possible to
meaningfully discuss the process by which evidence was gathered.
How can limiting the availability of information to the defense and the
jury do anything other than make trials less reliable?
One of the basic techniques of cross-examination, and of litigation in
general, is to compare factual assertions made by the other side, either at
different times or by different people (or both), find discrepancies, and
look for explanations which would explain the discrepancies. People who are
telling the truth should have stories which remain mostly consistent across
time, and groups of people who all experienced the same series of events
together should have stories which are roughly compatible.
Rules which allow one party to hide information make it more difficult or
impossible for the other party to examine the hiddent information for
discrepancies with other accounts or for logical and scientific
implausibilities. That limitation makes it more difficult or impossible to
make an argument to the jury that they should discredit the other party's
testimony - either because the people themselves are untrustworthy, or
because the methods they used were untrustworthy or unreliable.
Looking beyond the immediate "fair trials for defendants" issue,
information hiding about law enforcement techniques is poor policy because
it allows corruption to continue unchecked - see, for example, the
unconstitutional wiretapping engaged in by the LAPD and the LA County DA's
office revealed in late 1998 at
<http://www.newtimesla.com/1998/081398/feature1-1.html> and discussed
previously on cypherpunks. Oversight of police practices - by juries
asserting their right to nullify, and by press reporting on revelations
made at public trials - is essential to maintaining a minimum level of
conformity with law by law enforcement.
--
Greg Broiles
gbroiles@netbox.com
PGP: 0x26E4488C
