First, you can't legally take the fifth just because they are asking something they "have no right to ask". You can only legally take the 5th to prevent possible implication. You also only need to worry about the 5th during certain scenarios. Most of the time you can just refuse to speak. But if you've actually been charge and decided to take the stand and start to answer questions, you have waived your fifth amendment right because that would inhibit the cross-examination's questions.
"I mean, isn't it obvious?"
That's a common misconception about the 5th amendment. In fact the US Supreme Court has said - "One of the Fifth Amendment's basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances."
Case in point:
Detective: "Do you know the victim?"
Suspect: "Yeah, we've crossed paths a few times before - mutual friends"
Detective: "Do you like him?"
Suspect: "Not especially. He always seemed kind of arrogant."
Detective: "Where were you Friday night?"
Suspect: "I went out with a few friends to the Irish pub at the corner of 7th"
Detective: "That's interesting because his body was found about a mile from there. And the body was located roughly halfway between that pub and your apartment."
Oops. Now you're screwed. You've confirmed your knew the person, didn't like them, and was in the area of the murder on the night it occurred. And your language even uses the past tense ("seemed kind of arrogant"). All of this would be used against you.
Sure, you can refuse to speak during police questioning.
However, if you're charged, you will asked to take the stand, and perhaps be deposed. I'm not sure that you can keep refusing to speak, without facing contempt charges, unless you plead the Fifth. But IANAL, so ???
My "isn't it obvious" comment was not about the innocent. But rather about someone who is arguably guilty, and knows it, but doesn't want to give that away.
Not sure if you live in the US or not, but in the US you are never required to be deposed or take the stand if you are the person being charged. A person charged with a crime can never be forced to take the stand at all. If they choose to do so, they make that choice knowing that they are waiving their fifth amendment rights and can not take the fifth as that would hinder the right of the prosecution to cross-examine them.
If a person is not the one being charged with the crime they can be required to appear in court and provide testimony but if during the course of testimony they would be giving an answer that exposes any illegal activity on their part, they can take the fifth. A good example of this is is someone witnessed a crime but they were buying drugs at the time when they happened to witness it and they were questioned about why they were at that location at that time and what they were doing there. Answering that question would force an admission of a felony on their part and would expose them to charges so they can legally refuse to answer by citing the fifth amendment. A lot of times this is rectified by being granted immunity in return for testimony since the criminal activity on the part of the person testifying is not usually of significance to the prosecution.
OK, but what about that ex Philly cop who's been in jail for a couple years, for contempt, for refusing to provide a device passphrase? His actual trial is basically on hold, until he answers. Unless the Supreme Court intervenes, anyway.
That's a fair point to bring up. The verdict is still out on that one, as far as I know. From what I remember the issue was that he wasn't going to incriminate himself because they already had separate evidence showing that there was child porn on that device and he was the one who downloaded it. So since this was already known to police it wouldn't be a violation of his 5th amendment rights since the information was already known.
There were other rulings for other individuals for whom the government didn't have the evidence against already and they wanted the device access to give them that evidence. In those cases, as I recall, it was said that a defendant could not be required to decrypt unless the device was crossing the border and was subject to the standard lack of privacy at the border. Otherwise, since they didn't have proof, what they needed was the "content of his mind" and that was privileged. As for the border, they might not even be able to require decryption if you are a US citizen. They might demand it and even confiscate the device. But if you are a US citizen, you can't be blocked from entry. So they might just keep the device in those cases and allow you in. I can't swear to the accuracy of that one, though. But I'm pretty sure that's mostly correct. Non-citizens can be turned down at the border for pretty much any reason, including refusal to submit to searches and other privacy-related issues.
Thanks. I didn't realize that they had independent evidence that there was child porn on the device.
Or at least, I didn't realize that they had valid independent evidence of that. As I understand it, they had data from a hacked version of the Freenet client, showing that his node had received pieces of child porn files. They knew that because they were serving those files, and could identify pieces by hash value. Their expert testified that, contrary to claims by the Freenet Project about random routing of file pieces, they could determine that the defendant's node was in fact the recipient, and not just a relay. But, according to the Freenet Project, that's bullshit, which is based on a misunderstanding (perhaps intentional) of the Freenet protocol and mechanism.
I wonder whether they have other independent evidence that's actually valid. But these are subtle points for a judge. And I'm guessing that the defendant doesn't have the expert muscle to dispute those claims. And/or that juries could follow any of that.
"I mean, isn't it obvious?" That's a common misconception about the 5th amendment. In fact the US Supreme Court has said - "One of the Fifth Amendment's basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances."
Case in point: Detective: "Do you know the victim?" Suspect: "Yeah, we've crossed paths a few times before - mutual friends" Detective: "Do you like him?" Suspect: "Not especially. He always seemed kind of arrogant." Detective: "Where were you Friday night?" Suspect: "I went out with a few friends to the Irish pub at the corner of 7th" Detective: "That's interesting because his body was found about a mile from there. And the body was located roughly halfway between that pub and your apartment."
Oops. Now you're screwed. You've confirmed your knew the person, didn't like them, and was in the area of the murder on the night it occurred. And your language even uses the past tense ("seemed kind of arrogant"). All of this would be used against you.