Compelling a criminally accused individual to provide a passcode would constitute self-incrimination under New Jersey law, said New Jersey State Bar Association (NJSBA) Trustee Christopher J. Keating before the New Jersey Supreme Court last week. Keating argued on behalf of the NJSBA as amicus curiae in the matter of State v. Andrews, which considers whether it is a violation of a defendant’s Fifth Amendment right against self-incrimination to compel disclosure of personal identification numbers and passcodes for lawfully seized iPhones.
Relying on the “foregone conclusion” principle, the Appellate Division held that the government was already in possession of the facts implicitly conveyed by the act of producing the passwords. As such, it does not violate a defendant’s Fifth Amendment privilege against self-incrimination.
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