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Self-incrimination defense may block forced decryption

Written by Moses & Rooth on November 22, 2013

The Fifth Amendment to the U.S. Constitution helps to protect Americans against self-incrimination. For example, when a criminal proceeding is initiated, accused persons may invoke their Fifth Amendment rights by refusing to testify at trial if they are concerned that their testimony may in any way help lead to their conviction.

The Fifth Amendment protections against self-incrimination are sacred elements of both criminal justice law and of individual criminal defense strategies. In an era of electronic communication, the idea of what actions might constitute self-incriminating gestures worthy of Fifth Amendment protections have become more complex. As a result, it is critical that criminal law evolves with the times in order to avoid riddling Fifth Amendment protections with holes like Swiss cheese.

In one recent case, the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation filed a joint amicus brief in support of a defendant whose Fifth Amendment rights are being threatened by an order from the government. Government officials insist that this man must decrypt his computer, given that law enforcement officers have been unable to do so.

The joint amicus brief insists that forced decryption of his computer is a violation of his right against self-incrimination. And the logic behind this argument is sound. Nowadays, Americans express themselves in such a wild variety of different ways that being forced to expose ourselves through actions like decryption can be every bit as damning as testifying on the stand, once a criminal proceeding has begun. It will be interesting to see how this case is ultimately resolved.

Source: Courthouse News Service, “Forced Decryption Fought as Self-Incrimination,” Jack Bouboushian, Nov. 1, 2013

Posted Under: Criminal Defense

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