In Wake of Passcode Ruling, Fifth Amendment Jurisprudence May Need an Update
In Davis, the court found that the act of producing the password was "testimonial" in nature and thus the government's request violates the defendant's Fifth Amendment right against self-incrimination.
December 04, 2019 at 01:01 PM
6 minute read
On Nov. 20, in Commonwealth v. Davis, — A 3d. —, 56 MAP 2018, (Pa. 2019), the Pennsylvania Supreme Court held that compelling an individual to provide their password to an encrypted electronic device violates the Fifth Amendment. In this case of first impression, the government had moved to compel a defendant accused of distributing child pornography to provide the password to his encrypted computer, a device which itself had been lawfully seized. While the government's request was through a pretrial motion, Davis' holding is not limited to that context and will apply equally to grand jury practice.
In Davis, the court found that the act of producing the password was "testimonial" in nature and thus the government's request violates the defendant's Fifth Amendment right against self-incrimination. The court reviewed decades of U.S. Supreme Court precedent on the Fifth Amendment and distilled the caselaw to a few key points:
First, the Supreme Court has made, and continues to make, a distinction between physical production and testimonial production. As made clear by the U.S. Supreme Court, where the government compels a physical act, such production is not testimonial, and the privilege is not recognized. Second, an act of production, however, may be testimonial when the act expresses some explicit or implicit statement of fact that certain materials exist, are in the defendant's custody or control, or are authentic. The crux of whether an act of production is testimonial is whether the government compels the defendant to use the "contents of his own mind" in explicitly or implicitly communicating a fact. Third, and broadly speaking, the high court has recognized that the vast majority of compelled oral statements of facts will be considered testimonial, as they convey information or assert facts.
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