At 06:30 PM 9/27/96 -0800, Tim May wrote:
Hearing me say I "exported crypto," a hearsay claim, and happening to find one or more laptops at my home, weeks or months later, implies nothing. Legal proof is still needed. Given only a nebulous statement like "I exported crypto in violation of the ITARs," or "I shipped PGP to Europe," is not enough for a case even to be brought to trial.
(If it reached trial, I would expect a defense attorney to move for dismissal. Absent any evidence that a crime occurred, absent any proof beyond the nebulous hearsay statement of a "braggart," there is simply no basis for criminal action.)
"Stupid bragging criminals" may be common, but bragging is not in and of itself illegal. There still has to be evidence of a crime.
"Produce the body."
I mostly agree re the "corpus delicti" rule (a confession must be corroborated by independent evidence that a crime has been committed, common law federally, statutory in Oregon (ORS 136.425(1)) but disagree with your use of "hearsay" - statements of a defendant in a criminal proceeding are not hearsay because they're the statements of a party opponent. (In federal court and in Oregon, anyway - in California they're hearsay but admissible as an exception. FRE 801(d)(2), ORE 801(4)(b), Cal Evid Code 1220.) This quote from _US v. Singleterry_ (CA1, 1994) (sorry no F2 cite, found it on a net database of slip opinions) does a nice job of addressing the question at hand: "To begin with, we note that a defendant's own statements are never considered to be hearsay when offered by the government; they are treated as admissions, competent as evidence of guilt without any special guarantee of their trustworthiness. See Fed. R. Evid. 801(d)(2) & advisory committee's note; see also United States v. Barletta, 652 F.2d 218, 219 (1st Cir. 1981). Nevertheless, there is a danger that the jury will rush to credit a confession without seriously considering whether the defendant confessed to a crime he did not commit. As a result, the federal courts have adopted common law rules designed to prevent a jury from convicting the defendant solely on the basis of an untrustworthy confession. The general rule is that a jury cannot rely on an extrajudicial, post-offense confession, even when voluntary, in the absence of "substantial independent evidence which would tend to establish the trustworthiness of [the] statement." Opper v. United States, 348 U.S. 84, 93 (1954). See also Smith v. United States, 348 U.S. 147 (1954); Warszower v. United States, 312 U.S. 342 (1941); United States v. O'Connell, 703 F.2d 645 (1st Cir. 1983). The Court has explained that independent proof of the commission of the charged offense is not the only means of establishing the trustworthiness of the defendant's confession; another "available mode of corroboration is for the independent evidence to bolster the confession itself and thereby prove the offense `through' the statements of the accused." Smith, 348 U.S. at 156." (footnotes omitted) I think the question of what *would* constitute the corpus delicti is interesting; the mere presence of PGP overseas shouldn't be enough. And evidence like PGP's presence on a laptop which had once been overseas, or airline ticket stubs or passport stamps or testimony from a security officer who remembered making the defendant turn on the laptop at the metal detector, or even surveillance camera footage would corroborate the defendant's confession but not establish that a crime was committed. Such evidence would seem to get us closer to the latter test mentioned in _Singleterry_ but wouldn't meet Oregon's test of "some other proof that the crime has been committed" (ORS 136.425) nor California's "the charged crime actually happened" (People v. Jennings (1991) 53 Cal.3d 334, 368) standard. But an ITAR prosecution would occur in Federal court, where evidence which merely corroborates the confession (instead of proving a crime) may be sufficient. (And, of course, this is all just so much jawboning. Not legal advice. I'm inclined to avoid confessing to crimes via the Internet whether or not it seems likely to lead to prosecution or conviction. I've already been to one job interview where the employer had seen (and was unnerved) by my vocal presence on the net.(!?!) Which is OK with me because if I make someone nervous when they read Alta Vista, just wait until they meet me. :) It's time to get used to the idea that whatever we write may come back in 20 or 30 or 40 years, whether we like it or not. I think it'll teach us both a sense of forgiveness and a sense of discretion, but that may take awhile.) -- Greg Broiles | "We pretend to be their friends, gbroiles@netbox.com | but they fuck with our heads." http://www.io.com/~gbroiles | |