State v. Andrews, 243 N.J. 447 (2020). In a 4-3 decision that produced lengthy majority and dissenting opinions, the Supreme Court held that it does not violate a criminal defendant’s Fifth Amendment protection against self-incrimination or any New Jersey statutory or common law rights to compel the defendant to reveal the passcode to his cellphone. Justice Solomon wrote the majority opinion, in which Chief Justice Rabner and Justices Patterson and Fernandez-Vina joined. The dissent was by Justice LaVecchia, joined by Justices Albin and Timpone.
The State had a concededly valid warrant for the cellphones at issue. Thus, the only question for the Court was whether it violated the protection against self-incrimination to require defendant to reveal the passcodes for the phones.
Justice Solomon began by noting that the protection against self-incrimination applies only to “testimonial communications” that “imply assertions of fact.” He also observed, however, that, in a series of cases that involved production of documents, the Supreme Court of the United States had “developed an exception to the Fifth Amendment privilege against self-incrimination for acts of production that are testimonial in nature but of minimal testimonial value because the information they convey is a ‘foregone conclusion.'”
Summarizing those cases (after first discussing them in detail), Justice Solomon stated that, for Fifth Amendment purposes, “an act of production must be considered in its own right, separate from the documents sought[, a]nd even production that is of a testimonial nature can be compelled if the Government can demonstrate it already knows the information that act will reveal– if, in other words, the existence of the requested documents, their authenticity, and the defendant’s possession and control over them– are a ‘foregone conclusion.'” Justice Solomon canvassed cases from other jurisdictions that have struggled with applying the “foregone conclusion” doctrine to contexts other than document production, including the context of cellphone passcodes.
The majority concluded that revealing cellphone passcodes “is a testimonial act of production.” But the “foregone conclusion” exception applied to the act of the production of the passcodes, and that production, not the phones’ contents, was the proper focus. “[P]asscodes are a series of characters without independent evidentiary significance and are therefore of ‘minimal testimonial value’– their value is limited to communicating the knowledge of the passcodes.” And since the State had established that the passcodes exist and that defendant had control over them, and that the passcodes are self-authenticating when they provide access to the contents of the phones, the criteria for “foregone conclusion” were satisified.
Finally, Justice Solomon addressed New Jersey statutory and common law. he found nothing there to protect defendant from disclosing the passcodes.
Like the majority opinion, Justice LaVecchia’s dissent contains a scholarly analysis of many of the same cases. But the dissent concluded that “the forced disclosure of mentally cached information that represents the contents of one’s mind is violative of the Fifth Amendment’s protections.” Justice LaVecchia also would not have applied the “foregone conclusion” exception “outside of the original tax document setting in which it was first mentioned” by the Supreme Court of the United States. Finally, she contended, contrary to the majority, that New Jersey law also created protection for defendant.
Both of these lengthy opinions are well-presented and amply worth reading in full. But only one of them commanded the four votes needed to dictate the outcome.