Most of us understand we have a Fifth Amendment privilege against self-incrimination. This means in any civil matter, administrative proceeding, or criminal context, we can choose to assert our Fifth Amendment privilege and remain silent; we cannot be forced to say anything that might expose (incriminate) us to criminal prosecution. This blog explores a key case now brought by the defense and appellate attorneys to the Indiana Court of Appeals1 that will decide if the Fifth Amendment privilege applies to your smartphone.
In its basic form, the Fifth Amendment privilege dictates what you have formulated and thought about in your mind can stay there without criminal risk, if you choose to remain silent. With all the complex thoughts and interaction we have with our smartphones today, this raises the question: “If what is contained in our smartphone is an expression of the contents of our mind, and speaks for us, is it entitled to the Fifth Amendment protection against self-incrimination?”
This would mean that you would not have to give your passcode if ordered to do so by a court, as it would be the same as being ordered to give a confession. If the smartphone just has “material” on it, and does not speak our “mind”, it is not equal to a person (you) asserting a Fifth Amendment privilege over its access—its mind is your mind.2
What is on your phone that is basically a reflection of your thoughts?
This question was not around when the Fifth Amendment to the Constitution was ratified in 1791. However, this question is now a pending case, the decision with which will impact you and your rights and how you may be interrogated, prosecuted and defended in the future. Would you know to assert your Fifth Amendment privilege against self-incrimination as it relates to your smartphone speaking for you?
Soon this will be decided and could mean the difference between your freedom or imprisonment if you can assert your Fifth Amendment privilege for your smartphone and do not do so for yourself. Part of being in our free society is understanding your rights, as they are defined under the US Constitution in the technological age, as well as having criminal defense counsel or appellate counsel selected to identify and raise these issues when they arise. Watch this case and know your rights.
This blog was written by attorneys at Dixon & Moseley, P.C. to help you stay informed of your constitutional rights in this time of ever-expanding technology—where what your smartphone “thinks” and “says” for you may be the same as you admitting to a crime. Dixon & Moseley, P.C. advocates handle criminal defense cases and appeals throughout the State. This blog is written for general information purposes only. It is not intended to be legal advice or a solicitation for services. It is an advertisement.
- Seo v. Indiana (2018).
- This blog does not address Fourth Amendment analysis.
