Legal compulsion and self-incriminating passphrase

[Michael Froomkin - U.Miami School of Law]

On Thu, 9 Jul 1998, Caspar Bowden wrote many things including:

> I think the legal point of significance about the self-incriminating
> passphrase example is that the passphrase is not written down, it's in my
> head.

Alas, not.  As others have pointed out, a passphrase is not "testimonial",
ie the fact that a statement is all or part of a passphrase is not
probative of its truth.  Thus, saying "I killed Fred" in a passphrase is
not usually considered evidence of the truth of the assertion.  If the
data is not incriminating, then by definition the 5th Amendment cannot
apply to it.  And even if the data *were* incriminating, they could give
limited immunity (promise not to tell the jury the content of the
passphrase).

I'd still love to hear about how much if any of this applies in Europe
under the European convention on human rights....

A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
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