Mochaloca

Twisted Brother: "This thread has seemed to take a turn into legality land.

I was looking to discuss the moral implications of using one's own diary against them. To me the most important philosophical issue is that this diary is simply an expression of your thoughts and may or may not be true.

I personally would never keep a diary precisely because it could somehow someway be used against me.

I am well aware that the courts can probably take anything I write and turn it against me. I am aware that they can raid my home and find whatever they want. All they need is a generous judge to get a warrant. The fact that I look funny is probably sufficient cause in rural Texas.

I am also well acquainted with the case of some 30 black residents of a mostly white town (Tulia, TX) who were all convicted on the fabricated testimony of a single local law enforcement officer. Evidence was manufactured.

Our courts are fucked up. Just like our economic system, we pay a huge, huge price for protecting individual rights or corporate rights. But I am not interested in arguing the validity of our legal system. I think just like the reform of religious expression and privilege, to have reform of artistic expression and privilege, we must start to think differently about it first.

My philosophical arguement is that using art of any form against people serves to prevent many artists from freely expressing themselves. Likewise a diary keeps writers from expressing themselves. It should be enough for someone to state, "this is artistic expression," to make it exempt. Just as we allow some to state that their expressions are political and so are protected by the 1st Amendment."
*****
I disagree with your view (if I'm understanding it correctly) that using the hypothetical diary entry (if done in accordance with proper criminal procedural rules) is in the same league with using fabricated evidence. If the diary entry is the "only" evidence against you, then by law, it is no sufficient to convict. If the diary entry is in addition to other evidence, then the burden of "beyond a reasonable doubt" still must be met. (Note: the defense also has the option of trying to pursuade the jury that the diary entry is really "artistic expression" and not an "actual confession".

However, as to your question of whether using the diary entry is ever morally justified, I believe your analysis is incomplete. I believe it is debatable that the first amendment right to freedom of expression should be allowed to be invoked to suppress the diary entry from being used as evidence. However, for the sake of argument, assuming it should be invoked, I believe that the public policy would require that an individual's right to "freedom of speech" should be weighed against all other individuals' right to be protected from murderers.

Given the competing interests, I believe the chilling effect on artistic expression will (and should) lose out against protecting society from a potential murderer.

hasta....