twisted brother

Is it morally defensible to use your own diary to convict you of a crime?

Whether your thoughts are in your head, in your computer or in a book, should the courts use your own testimony, given without a miranda warning, to convict you?

brighid

I would say it is morally defensible to use your diary as part of evidence to convict you of murder. The question of Miranda rights is a legal, and not necessarily a moral one and in that case a number factors would need to be evaluated to determine if said evidence was gained illegally or otherwise. If the evidence was discovered while conducting a warranted search I would say it would be legal to use said evidence in court as part of the prosecuting case.

If your diary is used as evidence I don’t believe that is abrogating your Miranda rights as I believe this applies to spoken words and physical actions only. If you remain silent (invoking your 5th Ammendment rights) and peacefully go with the police that diary may still be used against you. It is a material item and I don’t believe that Miranda protects this type of evidence. Miranda doesn't apply to physical evidence, such as the murder weapon being found in a locked safe in your home, etc. I would say that a written confession is akin to a smoking gun.

If you committed murder, or killed another human being (not out of self-defense) and confessed such in a personal diary I do not find it immoral to use your own words against you.

Brighid

Tom Sawyer

Yes they should.

If you're stupid enough to write down that you committed a crime, you deserve what you get.

Of course, the police aren't able to look in that diary without previously having sufficient probable cause against you to obtain a search warrant, but once they do, everything is fair game. If you wrote it in a diary or emailed it to a friend, it can be found and used against you.

Miranda warnings serve to educate a suspect about what rights they have while they are in police custody and have no bearing on what the suspect did before the police arrested him.

brighid

http://publicdefender.cjis20.org/miranda.htm

1. You have the right to remain silent and refuse to answer questions. Do you understand?
2. Anything you do say may be used against you in a court of law. Do you understand?
3. You have the right to consult an attorney before speaking to the police and to have an attorney present during questioning now or in the future. Do you understand?
4. If you cannot afford an attorney, one will be appointed for you before any questioning if you wish. Do you understand?
5. If you decide to answer questions now without an attorney present you will still have the right to stop answering at any time until you talk to an attorney. Do you understand?
6. Knowing and understanding your rights as I have explained them to you, are you willing to answer my questions without an attorney present?


Brighid

Godless Dave

The 5th Amendment says you cannot be compelled to testify against yourself. If you write it down of your own free will, no one is compelling you.

twisted brother

Dogless Dave wrote:
That is the point I am trying to make. Because I wrote it down, are those thoughts, words, expressions no longer my own?
We consider books and artistic works to be the "intellectual property" of the creator. If this property is theirs, is it not their testimony?
The definition of testimony is not. My American Heritage (dcitionary.com) defines testimony as:
All of these definitions imply that even a written or recorded declaration is my testimony.

And Miranda states:

The tense of this warning implies the future. Anything that I say in the future, after the point of this warning. This means that anything that I said before I was Mirandized should not be used against me.

And a step further - is it not discrimination to state that since I wrote it down it is suddenly not my words against me? What if I am mute, or in some other way unable to communicate verbally? Can every expression of every thought I ever have or had be used against me?

And finally, though I did dig myself a hole with my title about murder, but I mean any crime, any testimony.

We protect free expression in this country to an extreme degree at times. We protect suspects sometimes to an extreme degree. What does this mean when someone's intimate, personal testimony about their life can be taken and used against them.

Tom Sawyer wrote:

I deserve what I get if I just write it down? EVEN IF I didn't do it?

brighid

Twisted brother,

Free expression is not without consequence though. Free expression does not insulate you from action that is illegal and killing someone is illegal.

I do not think that testimony and evidence are identical. Your diary would be physical evidence, albeit it is your written, personal testimony.

There is a difference and your written confession is physical evidence, fully admissible in a court of law. Unless the confession was coerced, or illegally obtained the prosecution is well within the confines of the law in using that against you.

Brighid

Bill Snedden

I'll preface my comments by saying that I have no knowledge of how case law deals with these types of instances, however it seems to me that an individual certainly has a right to expect privacy in what he or she records in a diary or personal log. These are his or her personal thoughts, not in any way intended for public consumption and therefore have a greater "aura" of protection covering them than would a written confession obtained under any legal means.

As private thoughts, diary or journal entries would seem to me to fall under the fifth amendment's umbrella. All other things being equal, you could not be commanded or coerced into handing over such documents to the police or prosecutors to be used as evidence against you.

Now, just as fifth amendment rights aren't absolute, I'm sure that there could be some way around this. I would imagine it might have something to do with how the authorities found out about this written confession in your diary or how they might have obtained it. Even so, diary entries usually represent your own words, your most private thoughts not intended for any other readers. Overcoming fifth amendment proscriptions would not be easy.

Of course, if you ever shared anything from your diary, no matter how trivial, or left it open on your bed, or even perhaps unlocked in a desk drawer, it might be argued that your expectation of privacy was unfounded and thus nonexistent. Still, I don't think I'd like to be the prosecutor in a case that turned solely on that piece of evidence.

Any lawyers care to offer an opinion?

Regards,

Bill Snedden

hezekiah jones

AFAIK, evidence contained in subpoenaed personal documents is not protected by the Fifth Amendment because the generation of the information in those documents was not itself compelled by government order (at least in the diary scenario).

There is a 3rd Circuit case that held pocket appointment books whose notations were intended only for the defendant's use were so private they were protected by the Fifth Amendment, but apparently that is an aberration.

Now the question of whether defendants must comply with government requests to turn over the documents in the first place is another story, since the act of producing the documents may constitute compelled self-incrimination.

Disclaimer: Not a lawyer, but played one during exam week.

BioBeing

So say you confessed (or bragged!) to a close friend (not a lawyer or priest) after murdering someone, and swore them to secrecy. And they kept that secrecy right until the point when a police officer asks them "Did twisted brother ever admit having killed that person to you?". Should your confession to that person not be used against you? Why should a diary be different?

Not a lawyer, but I did play one in the court house scene in "The People vs Larry Flint"
although I ended up on the cutting room floor