hezekiah jones

Because the friend would be called to testify under oath, which has nothing to do with the Fifth Amendment's protection of the defendant's right against self-incrimination. And once again the defendant's confession to the friend (like his "confession" to the diary) was not compelled by government action.

P.S. So did you get to burn one with Woody Harrelson?

Calzaer

First-hand testimony from someone else ("I saw.." or "he told me...") is always admissable except in a lawyer-client or doctor-patient relationship (among others). A diary is testimony from yourself, and therefore should fall under 5th Amendment protections. Not that it actually DOES, it just SHOULD.

Buddrow_Wilson

My opinion is that a diary is completely admissable given it was acquired legally. Although I would imagine (hope) it would take more than just that to convict.

Philosoft

Not entirely. There are certain pieces of testimony, of the form "he told me," that would be inadmissable as hearsay.
No it shouldn't, because legal "testimony" is a specific type of evidence - under oath and in response to questioning. If things like diaries were considered testimony, there would be endless challenges to include as protected testimony anything written by the accused.

Pyrrho

Why not? The claim that it is private is no more than my claim that everything in my home is private. But we all know that if the police get a search warrant, they will look at my private things. Why should a diary be any different from any other private article (like the ear of the victim kept for PRIVATE use later)?

Once you write something down, it is NOT simply thoughts. It is a physical thing that people can look at. And once you type something into a computer, it, too, is no longer merely thoughts.

From a practical point of view, you can always say, unless you give away too many details in your diary, that, like Oscar Wilde, you always keep your diary for when you travel, as you enjoy reading sensational (i.e., fictional) materials.

("I never travel without my diary. One should always have something sensational to read in the train." The character Gwendolen says this in the second Act of The Importance of Being Earnest by Oscar Wilde.)

Just because someone writes something down, that does not mean that it is true, or is even intended to be true.

BioBeing

Nah - I was just an extra! I saw him, but that was about it. Other than that, it was a bloody boring day!

Tom Sawyer

twisted brither,

If you didn't do it, they probably wouldn't be looking through your things. The only time that this situation came up would be if someone didn't commit a crime, wrote in his diary (for whatever reason) that he did and then the police had enough additional evidence against him to obtain a search warrant.

You can write down whatever you want in a diary, but if you don't do additional things to give the police reasonable evidence to be able to get a search warrant where they can see your diary, then you don't have to worry.

Once something is committed to writing, it becomes part of the physical world. Any evidence found in the physical world can be used against you. If, however, you didn't actually do it and your description of committing the crime does not match the evidence found at the crime scene, then the diary entry probably wouldn't carry as much weight. If it does match what is already known about the crime, then odds are you probably did it or know who did. That's why the police generally leave some pertinent details about crimes out of the press releases about it, so that they can seperate reliable witnesses or confessions from the nutjobs looking for come kind of attention.

Bad Kitty

What if your wife wrote it in HER diary. Spouses can not be compelled to testify against each other correct....?

Interesting.

Regards,

Michelle

brighid

I am going to have to inquire about this with a few friends in the legal field. I think this sort of evidence falls into a gray area of law and I am not entirely sure that it is protected. One couldn't be coerced, except legally. If one is legally coerced by court order, or through a warrant and by police seizure it certainly can be used against you. A diary may be private thoughts, but written words are material and are tangible evidence. If that evidence is legally obtained I cannot see it being deemed inadmissable in court.

I am going to have do some research on that and see what I can come up with though. I will come back to the discussion when I have discovered some valid, legal opinions on the matter.

I basically agree with you, but until I can feel confident about the full scope of the 5th Amendment umbrella ... well, I am just not sure.

Brighid

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.