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There is no practical difference between compelling testimony as to what happened or was said and producing documentation of what happened or was said.
Diaries have been used in court to convict people. You cannot be forced to convict yourself with testimony. A significant difference.
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For example, your diary is just as protected under the right against self-incrimination as being forced to testify verbally in court. Zero difference....just because one form of testimony was already recorded and another is yet to be recorded. It is immaterial.
the right to avoid self incrimination is absolute. The right to not have your effects searched is not. Its limited by "unreasonable". Which means that while you cannot be forced to incriminate yourself ever, you CAN be forced to hand over documentation and effect which do.
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And written or electronic records are of course within the "papers and effects" specifically mentioned as being free from unreasonable searches or seizures.
"unreasonable" being the key word. Stop ignoring that critical word.
There is no practical difference between compelling testimony as to what happened or was said and producing documentation of what happened or was said.
Not sure you're right, actually. Did a bit of a web search, there seems to be a "Production of Documents" exception, with some qualifications.
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For example, your diary is just as protected under the right against self-incrimination as being forced to testify verbally in court. Zero difference....just because one form of testimony was already recorded and another is yet to be recorded. It is immaterial.
Can you provide a court case where this is codified? What you describe would make a lot of technical evidence inadmissible.
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And written or electronic records are of course within the "papers and effects" specifically mentioned as being free from unreasonable searches or seizures.
You don't have to be charged with a crime to invoke your 5th Amendment rights. Witnesses who are called to testify in a trial may invoke the 5th Amendment if their truthful testimony will incriminate them.
A valid point - but the larger question stands: Are you compelled to accept immunity?
You are not compelled to accept immunity. If you're indicted, you can roll the dice, go to trial, and hope for an acquittal. Or you can cooperate without accepting immunity if you don't think there's enough evidence to indict you for anything.
Actual legal question: Does the 5th apply? Emails that were written before any sort of investigation are protected by the 4th, obviously, but the 5th is about actual testimony - as in, the state can't compel you to testify against yourself, right? But emails that predate any questioning aren't prompted by the state questioning you, they've been written out of the witness' own free will. The state didn't compel him to do anything back then. Not sure the 5th applies to that.
Another actual legal question: Do you have to accept immunity? If Nunberg decides that it would be in his best interest to stand trial and take his chances with a jury, I suspect he could claim the 5th.
No. The 5th would only apply if Nunberg committed a crime and the emails incriminate him--it doesn't have to do with when the emails were written. Even if they did, he could be forced to invoke the 5th (or, more likely, try to negotiate immunity) in actions other than his own criminal process.
If there's an email that says: "Roger, let's meet with Vladimir next week to talk about how to hack DNC emails," then Nunberg would be justified in invoking the 5th to withhold that email. Of course, if he invokes the 5th to justify withholding emails, then that would probably be noted in a search warrant application that would be directed at Nunberg's internet provider, email service, phone company, etc.
I believe that a refusal to testify when you are granted immunity can lead to contempt. Nunberg has not been charged with a crime. He is not--at this point--the one who would go before a jury. He is simply a witness for the Grand Jury. It is probably unwise to draw prosecutorial attention towards yourself in a complex investigation--one that may well include investigation into financial crimes, RICO, accomplice/conspiratorial liability, and espionage.
No. The 5th would only apply if Nunberg committed a crime and the emails incriminate him--it doesn't have to do with when the emails were written. Even if they did, he could be forced to invoke the 5th (or, more likely, try to negotiate immunity) in actions other than his own criminal process.
If there's an email that says: "Roger, let's meet with Vladimir next week to talk about how to hack DNC emails," then Nunberg would be justified in invoking the 5th to withhold that email. Of course, if he invokes the 5th to justify withholding emails, then that would probably be noted in a search warrant application that would be directed at Nunberg's internet provider, email service, phone company, etc.
I believe that a refusal to testify when you are granted immunity can lead to contempt. Nunberg has not been charged with a crime. He is not--at this point--the one who would go before a jury. He is simply a witness for the Grand Jury. It is probably unwise to draw prosecutorial attention towards yourself in a complex investigation--one that may well include investigation into financial crimes, RICO, accomplice/conspiratorial liability, and espionage.
Flaws in the law then, or more likely not in the law at all, but just yet another abuse of judicial power promulgated by the FRCP or perhaps just manufactured out of whole cloth by the deranged mind of a judge.
In any event, no matter how it arises, the idea that the mere existence of a diary makes it subject to search in the event the diarist has ever described the commission of any crimes is pure nonsense and abhorrent to the Constitution.
The government must have PC to search your stuff. Full stop.
Unless you have TOLD someone that the diary contains evidence of a crime, there is no probable cause to believe that it does.
Anyway, if you *really* want to diary your crimes, I'd recommend peppering it with a heavy dose of poison in the form of many such confessions of a fictional and imaginary, but still potentially plausible nature, so that no credibility can be extended to it. Or confess to unsolved real crimes in which your self-professed involvement could not be proved or disproved.
Any reasonable reader of such a tome would have to believe it is simply not credible as a body of work and thus no excerpt of it can be deemed credible either.
You could also write the diary under a disclaimer that it is wholly a work of fiction. Then it is certainly prima facie NOT evidence, and no reasonable person could conclude that it could legitimately be the target of a search for evidence based on probable cause of suspicion of a real event.
A valid point - but the larger question stands: Are you compelled to accept immunity?
I'd imagine not.
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