On Mon, 15 Apr 1996, Hal wrote:

From: Black Unicorn <unicorn@schloss.li>

...

I've been involved in a private discussion with a list reader about the extent to which courts can impose contempt fines and sanctions. I thought I would post the results to the list as many have expressed interest in the ways that courts might try to compel production of crypto keys or compel offshore e-cash institutions. The bulk of my answer follows.

I thought this was very interesting and I appreciate Unicorn taking the time to lend us his expertise.

Thanks for taking the time to tell me so.

...

The key to limiting the ability of a court to summarily enter contempt sanctions has always been the classification of the sanctions. "Criminal" sanctions, may entitle the witness to a trial by jury. [...] "Civil" sanctions do not require such protections and can be imposed on the spot and without review.

I didn't understand what distinguishes civil and criminal sanctions. Is it the nature of the proceedings, whether it is a civil or criminal case that is before the judge? Or is it the nature of the contempt charge itself, where not doing what the judge wants, in broad terms, is civil contempt? And in that case, what would be criminal contempt?

It's muddled. The key seems to be the nature and purpose of the sanctions. (And mostly the purpose). As a very general rule of thumb (as these tend to be case by case analysis) when the sanctions are punative, intended to punish past conduct and not influence future conduct, contempt sanctions are "criminal" and require due process and other protections. Where contempt sanctions are intended to effect compliance with court orders, or are the result of disruptive or destructive behavior that interferes with a court's proceedings (withholding testomony, outbursts or insulting behavior in the court, withholding evidence, refusal to appear), contempt sanctions are civil, and can be leveled on the spot without any protections or review.

...

The court makes a point to justify severe sanctions where testimony is sought, or the proceedings are threatened. "The necessity justification for the contempt authority is at its pinnacle, of course, where contumacious conduct threatens a court's immediate ability to conduct its proceedings, such as where a witness refuses to testify, or a party disrupts the court... [t]hus, petty, direct contempts in the presence of the court traditionally have been subject to summary adjudication, 'to maintain order in the courtroom and the integrity of the trial process in the face of an 'actual obstruction of justice.'" International Union, supra (quoting Codispoti v. Pennsylvania, 418 U.S., at 513 and citing numerous other sources).

Would there be a distinction between contempt by a witness and that by the defendant (in a criminal case)? I could see justification for attempting to compel testimony from a witness who can shed needed light on guilt or innocence in the case. A man's freedom or perhaps his very life is at stake. But it seems to be another matter to compel the defendant himself to provide some information which will be detrimental to himself.

Historically, and in my experience, criminal defendants are given a lot more leeway. No judge is going to push constitutional rights with contempt sanctions. If, however, in the judge's view there are not constitutional rights which apply, defendant's are just as likely to get smacked. (One example that comes to mind is where the defendant waived his Fifth Amendment rights, then refused to testify anyhow. Prosecution objected and asked for contempt sanctions [for which there was a very good argument, the waiver was quite explicit and the prosecution had based a good deal of argument on it and defendant's existing testomony already.] The judge refused to level contempt, prosecution appealed the decision immediately and we went all the way to oral argument before the appeals court upheld the judge's decision. The appeals court judge cited specifically the importance of leeway in criminal cases and refused to find clear error).

The defendant has some Fifth Amendment rights, but for those cases where what he is ordered to do has been found not to be protected by the Fifth Amendment it still seems bizarre to imagine him jailed for contempt if he refuses. Are there precedents for holding a defendant in contempt for standing mute at his own trial?

These are generally only after an explicit waiver of fifth amendement rights, or when they clearly, quite clearly, do not apply. I'll dig up cites if there is enough interest.

(Part of my problem with this scenario is my sense that despite gradual erosion of the rights against self incrimination, verbally revealing a pass phrase which will unlock an encrypted document seems like testimony, and something which should be protected. Is there such a difference between "Reveal the pass phrase" and "Reveal what you did with the knife", if the judge doesn't believe the denials of the ability to comply?)

To trigger Fifth amendment rights, an act must be testimonial, and incriminating. I discussed it a bit in my note on asset concealing. I've reproduced the passage below: The cases following In re Grand Jury Proceedings, 814 F.2d 791 (1st Cir. 1987) demonstrate how the fifth amendment has been eroded or eliminated in application to this problem. In the In re case the defendant was directed by the district court to sign a consent form permitting the disclosure and production by a financial institution of documents protected by Singapore banking secrecy law. On refusing to sign, the defendant was held in contempt. The investigation alleged reporting and currency violations. The defendant appealed to the First Circuit which held the signature as both "testimonial" and "self-incriminating." The court reasoned that the consent form "amounts to an assertion" that the bank customer consented to production of the requested records and that it was "self- incriminating" because it could be used to demonstrate incriminating facts (e.g., that the accounts in the witness's name existed and were within the witness's control). Even at the time, however, this decision was in conflict with the Second, Fifth and Eleventh circuits, which have held such an order does not violate the fifth amendment. (Typically on the grounds that the forms signed were non-testimonial). Lately, clever prosecutors and private litigants have evaded the testimonial hitch entirely by phrasing their consent forms in the hypothetical, and not naming specific account names or numbers. The Supreme Court upheld the order of contempt for a defendant refusing to sign such a document. See, Doe v. United States, 108 S. Ct. 2341 (1988). The Court noted that the form was carefully drafted not to make reference to a specific account, but only to speak in the hypothetical. [...] For more examples See also, United States v. Davis, 767 F.2d at 1040 (holding any problem of testimonial self-incrimination is solved by such an order precluding use of directive as admission); In re Grand Jury Proceedings, 814 F.2d at 795 (expressly approving of reasoning in Davis); United States v. A Grand Jury Witness, 811 F.2d 114, 117 (2d Cir. 1987); United States v. Cid-Molina, 767 F.2d 1131, 1132 (5th Cir 1985); United States v. Ghidoni, 732 F.2d 814, 818 (11th Cir.), cert. denied, 469 U.S. 932 (1984); United States v. Browne, 624 F. Supp. 245, 248 (N.D.N.Y. 1985); United States v. Quigg, 48 A.F.T.R.2d 81- 5953, 5955 (D. Vt. 1981). *end If there is enough interest, I will do a small note on the distinctions that have been important to courts in compelling production of potentially incriminating evidence.

...

Most interesting to the crypto crowd:

"Contempts such as failure to comply with document discovery, for example, while occurring outside the court's presence, impede the court's ability to adjudicate the proceedings before it and thus touch upon the core justification for the contempt power.... Similarly, indirect contempts involving discrete, readily ascertainable acts, _such as turning over a key_ or payment of a judgment, properly may be adjudicated through civil proceedings since the need for extensive, impartial fact-finding is less pressing." International Union, supra (emphasis added).

I would guess that "turning over a key" here refers not to production to the court by rather to passing a physical key between two contesting parties, say a seller and buyer of some property that the key gives access to. The phrase "turning over" rather than "production of" suggests this interpretation. So this sounds like something which would be more likely to occur in a civil proceeding than a criminal one.

I have seen a court compell the production of safety deposit box keys in a criminal case when those boxes were suspected to hold the fruits of a crime and the court had acknowledged the defendant's possesion of the key, and ownership of the box as well as the potential incriminating nature of the boxes contents. A per day fine was imposed. If you want specifics I'll attempt to get a waiver from the client and pass them on.

Hal

--- My preferred and soon to be permanent e-mail address:unicorn@schloss.li "In fact, had Bancroft not existed, potestas scientiae in usu est Franklin might have had to invent him." in nihilum nil posse reverti 00B9289C28DC0E55 E16D5378B81E1C96 - Finger for Current Key Information Opp. Counsel: For all your expert testimony needs: jimbell@pacifier.com