Passcodes and Self-Incrimination (Part 4)

by | Nov 12, 2020 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

The majority continued in relevant part: The Court reviews the origin and development of the foregone conclusion exception to the Fifth Amendment privilege against self-incrimination in Fisher v. United States, 425 U.S. 391 (1976), United States v. Doe, 465 U.S. 605 (1984), and United States v. Hubbell, 530 U.S. 27 (2000). From those cases, which all addressed the compelled production of documents, the following principles can be inferred: For purposes of the Fifth Amendment privilege against self-incrimination, the act of production must be considered in its own right, separate from the documents sought. And even production that is of a testimonial nature can be compelled if the Government can demonstrate it already knows the information that act will reveal — if, in other words, the existence of the requested documents, their authenticity, and the defendant’s possession of and control over them — are a foregone conclusion. 

Although the Supreme Court has considered the application of the foregone conclusion exception only in the context of document production, courts in other jurisdictions have grappled with the applicability of the exception beyond that context, and many have considered whether the exception applies to compelled decryption or to the compelled production of passcodes and passwords, reaching divergent results. Among other causes for that divergence is a dispute over how to adapt the foregone conclusion analysis from the document-production context, which involves the act of producing the document and the contents of the document, to the context of passcode production, which involves the act of producing the passcode that protects the contents of the electronic device.

Some courts to consider the issue have focused on the production of the passcode as a means to access the contents of the device, treating the contents of the devices as the functional equivalent of the contents of the documents at issue in the Supreme Court cases. Other courts have focused on the passcodes themselves as that which is produced. The Court reviews case law expressing both views.

This is another disappointing opinion for proponents of privacy and individual liberty. Consistent with a trend dating back to Governor Christie’s pro law enforcement members of the Court, the majority eschews New Jersey’s rich history of expansive liberties in favor of lock-stepping with federal case law and the minimums required by our federal constitution.