[thaumaturgy]

I've actually been in court for this kind of stuff. (Not as a defendant.) What actually happens is the prosecutor tells the court that they have X, Y, and Z evidence, which indicates the existence of W evidence, even though they can't actually get hold of W evidence. Then they don't charge you for W evidence directly, they just run the charges up for X, Y, and Z until you agree to a plea bargain anyway.

Your ability to defend against tactics like this is 100% dependent on the size of your bank account, which, by the way, may also be compromised if the prosecutors can convince the right people that you made any money at all on your illegal activities.

This is why I am mostly blasé about things like TrueCrypt's capabilities or this particular part of the law or what-have-you. If you're doing something illegal involving a computer, you're already screwed anyway -- unless you're independently wealthy and have some serious connections.

[nknight]

> What actually happens is the prosecutor tells the court that they have X, Y, and Z evidence, which indicates the existence of W evidence, even though they can't actually get hold of W evidence. Then they don't charge you for W evidence directly, they just run the charges up for X, Y, and Z until you agree to a plea bargain anyway.

Uh, yeah, so what?

If they have the evidence to prove you committed a crime, then they have the evidence to prove you committed a crime. It kind of makes sense that they'd, y'know, prosecute you for that crime.

They can't just arbitrarily increase your sentence based on the suspicion of another crime. There are statutory limits for the crimes they can prove, augmented by sentencing guidelines. The court cannot exceed the statutory limits, and deviations from the sentencing guidelines require a justification to be articulated. "I think you also did W" is not a valid justification.

You're always at risk of a harsh sentence for whatever crimes can be proven. If you're not prepared to take that risk, you should probably avoid committing the crimes in the first place, no?

[maratd]

> If you're not prepared to take that risk, you should probably avoid committing the crimes in the first place, no?

That presumes you have the capacity to know what is and what is not legal. In the US, no human being is capable of that. On top of thousands and thousands of federal statutes, you also have state, county, and local statutes to worry about.

If the prosecutor comes up empty and you piss him off by playing games, guess what? He'll go on a fishing expedition and he will find something because, quite simply, it's impossible to run a business for any period of time without breaking some regulation or statute somewhere out there.

There's a reason 90% of criminal cases end in plea bargain. It's not because the people pleading are guilty nor because they are dumb.

Look. Don't do things to piss off cops or prosecutors. Be cordial, be kind, be helpful. They deal with assholes all day, it's easy to forget the nice guy. Also, hire a lawyer who used to be a prosecutor and who is on very good terms with the prosecutor and the local judges. The evidence isn't going to matter. There's a 90% chance you won't even get to trial. Focus on ending things cordially and quickly.

[nknight]

If someone has evidence on their encrypted drive that could put them away for life or a large portion thereof, or even trigger a capital case, the fine or few years of time behind bars for whatever piddly-ass crap the prosecutor can dig up is not going to be their primary concern. Worse for the prosecutor, if they go to extreme lengths to find something to charge you with, they risk pissing off the judge and/or appellate system with their vindictiveness.

You're always going to have to make a judgement as to whether you're better off cutting a deal or refusing to cooperate, but that does absolutely nothing to change the fact that a hidden volume may save your life.