Sklyarov Discusses the ElcomSoft Trial

DaytonCIM writes "Dmitry Sklyarov talks openly about the ElcomSoft trial to CNET News. The 'Russian programmer thinks it was unfair of prosecutors to play his videotaped deposition at the ElcomSoft trial rather than calling him to the stand.'"

Re:Um

[DaytonCIM]

No... it's spelled S k l y a r o v.

Thanks for playing.

More Info on the Case

[DaytonCIM]

If you want to know more about this case, ElcomSoft, or Dmitry Sklyarov, EFF.com has a great FAQ. Check it out here [eff.org].

Re:Um

[MSBob]

Doesn't matter. His name only has an exact cyrilic spelling. Anything written in the roman alphabet is simply an approximation.

Re:The question I want answered is...

[svyyn]

Sklyarov came to the US to give a talk on breaking Adobe e-Book encryption, which was a violation of the DMCA. As such, he was detained... for six months. The 'right to a speedy trial' apparently means under a year or two. He was allowed to go home without prosecution only in exchange for testifying against his employer, Elcomsoft. As such, there are no 5th Amendment issues here, because he's not testifying against himself. Elmcomsoft was doing business in, and has servers in the US. Therefore it's in the US's jursidiction -- they can force the company's presence out of the US. (Which would then bring us into fair trade issues with certain unnamed intranational arbiters.)

Re:Hmm...

[Jason Earl]

It was evidence, and the prosecution probably guessed that actually having Dmitry on the stand would hurt their case. Of course, since this isn't one of those really backwards countries the defense was able to put Dmitry on the stand as one of their own witnesses.

Unfair? Try "only option"

[Maxwell'sSilverLART]

Before everybody gets up in arms about this great injustice, let's have a brief look at the facts*, shall we?

1. Dmitri gave his deposition, presumably voluntarily. Before questioning, he would have been apprised of his rights, and of the fact that anything he said (including the deposition) could be used against him in court.
   That means he knew they could use the deposition in court, and chose to give it anyway
2. The Constitution specifically forbids the prosecution from calling Dmitri to the stand--that whole pesky "Fifth Amendment" thing, which states, in part, "nor shall [he] be compelled in any criminal case to be a witness against himself."
   That means that the prosecutor couldn't call him to the stand, even if he wanted to

Unless I'm missing something here, the system worked exactly as it was supposed to. If Dmitri wanted to testify, his lawyer, the defense attorney, could have called him to the stand; that he didn't indicates that he (the lawyer) felt that putting him on the stand, where he'd be subject to cross-examination by the prosecution, would be more harmful to the case than allowing his deposition to go unexplained.

Given the outcome of the case, I'd have to agree.

IANAL.

(*Yes, I know, facts, on Slashdot. It's so crazy it just might work!)

Re:Hmm...

[AyeRoxor!]

"with no intention of letting him stand up and defend himself?"

You have to remember that the charges against him were dropped. As soon as he accepted the bargain of exchanging his testimony/recorded whatever for dropped charges, he lost his right to defend himself and/or his actions. Any defendant has the right to face his accuser in court, not just anybody involved. And in any case, Elcomsoft's attorney could call him at any time.

Re:Whats the difference...

[alkali]

The usual method is that one side "designates" deposition testimony to be read (or played) to the jury and the other side "counter-designates" testimony which it believes is necessary to make the testimony complete. The court is usually provided with a transcript of the entire deposition marked to show the designated and counter-designated portions. The point is to read (or play) only the relevant portions of the testimony rather than waste the jury's time and confuse the issues. There's nothing fishy about it.

Re:He wasn't under oath for the tape, right?

[alkali]

It is not usual to accept a videotaped deposition if the person giving it is available to testify in person.

Depositions taken in accordance with Federal Rule of Criminal Procedure 15 [ukans.edu] may be used at trial in accordance with subpart (e) of that Rule:

At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used as substantive evidence if the witness is unavailable, as unavailability is defined in Rule 804(a) of the Federal Rules of Evidence, or the witness gives testimony at the trial or hearing inconsistent with that witness' deposition. Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require the offering of all of it which is relevant to the part offered and any party may offer other parts.

Re:Unfair? Try "only option"

[Anonymous Coward]

The Constitution specifically forbids the prosecution from calling Dmitri to the stand--that whole pesky "Fifth Amendment" thing, which states, in part, "nor shall [he] be compelled in any criminal case to be a witness against himself." That means that the prosecutor couldn't call him to the stand, even if he wanted't

The law doesn't say the prosecution can't put him on the stand... it just says he has the right to refuse to testify once he is on the stand on the grounds that it may incriminate himself.

Unless I'm missing something here, the system worked exactly as it was supposed to. If Dmitri wanted to testify, his lawyer, the defense attorney, could have called him to the stand; that he didn't indicates that he (the lawyer) felt that putting him on the stand, where he'd be subject to cross-examination by the prosecution, would be more harmful to the case than allowing his deposition to go unexplained.

RTFA... From the article:
The defense later called Sklyarov as its own witness, and in a calm, cooperative manner, the boyish programmer testified that he never intended for the product to be used illegally--an assertion that played well with jurors interviewed after the case. He said the software was designed to allow people to make backup copies of eBooks they already own or transfer the material to a different computer.


Damn it people... read the fscking article some time instead of writing ignorant comments...

Re:Unfair? Try "only option"

[Kallahar]

The fifth amendment gives you the OPTION to not testify against yourself. If you want to be called, you certainly can. It's not until you're sitting in the witness box that you have the option to excercise your fifth amendment right.

Travis

Re:Breaking US laws in Russia

[Parad0x177]

Ok, up front: I think DMCA is crap and I don't think this guy did anything wrong.

But, to be technical, he wasn't "breaking US law in Russia." The US law wasn't in question until the software was exported to the US at which point it becomes subject to US laws. Then, by setting foot in the US, he became subject to US law.

In other words, if you are going to write questionable software outside the US and then make it available in the US, you should probably avoid flying in to make the convention circuit.

Re:Whats the difference...

[Alsee]

I agree with you, just want to enhance one point...

challenge your statements on the stand, obviously with the intent to lessen the impact of those statements on the jury.

I wouldn't say it is to lessen the impact, I would say it is to clarify and balance the statements.

The US legal system is an adversarial system, each lawyer tries to turn the testimony to support his side as much as possible. Witnesses are not allowed to simply get up there and announce the "truth". They can only answer the lawyer's questions. The laywer has a lot of control of what information is presented and how it is presented. Without cross examinaton it can be extremely distorted.

With recorded testimony the control is even greater. If the lawyer doesn't like the way one of his questiones was answered I think he can "unask the question" by not including the question in the tape.

Was this a misscarrige of justice? No, the defence was able to add him to their witness list and call him themselves. It just strikes me as a stupid stunt by the prosecution.

If I were on a jury and this sort of think happened I'd certainly wonder why the hell the prosecution didn't want him on the stand.

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