Passcodes and Self-Incrimination (Part 7)

by | Nov 21, 2020 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

Justice Solomon and the 4-3 majority concluded in relevant part: New Jersey’s common law privilege against self-incrimination derives from the notion of personal privacy established by the United States Supreme Court in Boyd v. United States, 116 U.S. 616 (1886). The Fisher Court overturned Boyd’s protection of private documents. See 425 U.S. at 407. In In re Grand Jury Proceedings of Guarino, the Court affirmed its “belief in the Boyd doctrine and held that the New Jersey common law privilege against self-incrimination protects the individual’s right ‘to a private enclave where he may lead a private life.’” 104 N.J. 218, 231 (1986). Thus, despite the shift at the federal level, the New Jersey common law privilege continues to consider whether evidence requested is of an inherently private nature. Noting as much yields the answer here.

The constitutional privacy considerations, see U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7, that would apply to those portions of the cellphones’ contents of which disclosure has been ordered have already been considered and overcome through the unchallenged search warrants granted in this case. Whether the inquiry is limited here to the passcodes or extended to the phones’ contents, the result is the same. 

The majority cites to federal and New Jersey Constitutional provisions that indirectly address privacy. However, the majority overlooks that the New Jersey Constitution also contains a provision that directly and expressly addresses privacy. There is no analogous federal constitutional provision that directly addresses privacy.

Justice LaVecchia was joined by Justices Albin and Timpone in dissent. In short, the dissent argued: that the right of individuals to be free from the forced disclosure of the contents of their minds to assist law enforcement in a criminal investigation, until now, has been an inviolate principle of law, protected by the Fifth Amendment and New Jersey common law. No United States Supreme Court case presently requires otherwise, no case from the Supreme Court of New Jersey has held otherwise, and that protection deserves utmost respect.

The Court’s outcome deviates from steadfast past principles protective of a defendant’s personal autonomy in the face of governmental compulsion in a criminal matter. Modern technology continues to evolve, bringing new problems; but it also may bring new solutions. The resolution to the present problem must be found in those new technological solutions — at least until the Supreme Court addresses whether it is now willing to permit forced disclosure of mental thoughts because, to date, its case law on accessing physical documents does not support the steps being taken here.

Justice LaVecchia is effectively signaling to the defense that this case should be appealed to the United States Supreme Court. Her strong dissent will be considered and likely quoted by the nations highest court if certiorari is granted.