Capitol Report

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January 27, 2020

NJSBA to Supreme Court: Passwords to electronic devices cannot be compelled in criminal matters

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.

The NJSBA argued that compelling such information under the foregone conclusion exception “reaches far beyond the physical into the mind of the suspect.” It posited the question of whether the Court had a “superior right of possession” to a defendant’s thoughts, such that a passcode.

Also arguing as amici were the County Prosecutors Association of New Jersey on behalf of the state; the Attorney General’s Office on behalf of the state; the Association of Criminal Defense Lawyers on behalf of the defendant; the Electronic Privacy Information Center, a public interest research center that focuses on emerging civil liberties issues, First Amendment, and other constitutional issues, on behalf of the defendant; Electronic Frontier Foundation, a member-supported, nonprofit civil liberties organization to protect free speech and privacy in the digital world, on behalf of the defendant; the American Civil Liberties Union on behalf of the defendant; and the Office of the Public Defender on behalf of the defendant. The NJSBA brief was written by Keating, Richard F. Klineburger, Brandon D. Minde, and Matheu D. Nunn.

State’s request for stay of DRE-involved DWI cases should take more nuanced approach

Consistent with a sua sponte order issued by the Honorable Bonnie Mizdol, A.J.S.C., applying to matters pending in Bergen County, the state has requested a stay of all cases statewide involving drug recognition evidence (DRE) in driving while intoxicated (DWI) cases until there has been a disposition of the question before the special master in State v. Olenowski dealing with the general acceptance of DRE evidence. The NJSBA, which appeared as amicus curiae in Olenowski, does not object to permitting a stay in appropriate circumstances but argued, in a response filed with the Court, that due to speedy trial concerns, potential prejudice could arise in some cases. Therefore, the parties should be permitted to proceed in matters where resolution can be reached independent of the DRE evidence. Other amici in the matter included the Office of the Public Defender and the Association of Criminal Defense Attorneys.

Special Master Joseph F. Lisa, J.A.D., (retired, on recall), is tasked with deciding whether DRE evidence has achieved general acceptance with the relevant scientific community and, therefore, satisfies the reliability standard of N.J.R.E. 702 pursuant to an order issued on Nov. 18, 2019. The NJSBA is participating in the special master hearings along with the parties in the matter and several other amici.

This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters.