How does self-incrimination affect password-protected phones?

In most cases, a defendant would not be required to share his or her phone’s password, but the precedence might be changing.

In courts across Washington, and much of the country, technology, such as laptops and smartphones, plays a key role in finding a verdict. However, getting access to the technology sometimes requires getting a passcode from the accused or a witness. The question is, is this information protected by the Fifth Amendment?

Understanding self-incrimination

Typically, self-incrimination is defined as the act of linking oneself to a crime. According to the Fifth Amendment, a person is protected from being a witness against him- or herself. For this reason, the accused is not required to take the stand until a criminal case makes it to the federal grand jury. If the defendant voluntarily takes the stand, he or she may not be entitled to the protections offered by the Fifth Amendment because a judge can require certain questions are answered.

Protection against self-incrimination was initially important when torture was a prevalent practice in legal settings. While this is no longer an issue, it stays in place today in order to protect innocent parties from being caught up in unclear situations. For example, an innocent juvenile who has a weak alibi might not want to give certain information to avoid being accused of a crime he or she did not commit.

Looking at the difference between a password and a key

Not all information is protected by the Fifth Amendment. For example, a defendant may be required to provide a material piece of evidence, such as a key to a lock, but not something he or she knows, such as a combination to a lock. For this reason, smartphone users who have a password locking their phone may be protected from sharing the password in a court-setting thanks to the Fifth Amendment.

Some smartphone users set up a fingerprint password to protect their devices. Does unlocking a fingerprint-protected phone fall under what someone knows or what someone has? Recently, many courts across the country have required defendants provide the fingerprint that unlocks the phone because, according to the Daily Caller, providing a fingerprint does not require the use of mental processes, so it is more like a key.

Reviewing an exception

Under normal circumstances, a person on trial does not have to give the passcode to his or her phone, however, there could be exceptions to the rule. For example, CSO Online describes a unique case in Florida where the defendant was required to provide the passcode to a phone. What made this decision different? The argument was that the password itself did not incriminate the defendant, so it should not be protected by the Fifth Amendment.

Criminal cases in Washington are full of nuances. It might be beneficial to talk with an attorney who is familiar with these types of trials.