The Fifth Amendment gives citizens a number of rights in criminal prosecution. The most important, and most well-known, is the protection against being forced to incriminate yourself. This means that you do not have to testify against yourself. However, the Fifth Amendment does leave some questions unanswered as they relate to technology and evidence that individuals store on computers and smart devices.

Today we are going to discuss some of the gray areas. However, the main takeaway is that if you are asked by the police to provide evidence against yourself, you should immediately contact a criminal defense attorney. You can contact Law Office of Michael L. Fell at (949) 585-9055 for a free legal consultation.

You do not have to answer questions that incriminate you

When most people think of the Fifth Amendment, they think of what is known as “pleading the
Fifth,” which involves a person refusing to answer questions that could self-incriminate. Individuals have the right to “plead the Fifth” both while in custody and in court.

Note that this privilege is not unlimited. The possibility of criminal prosecution resulting from the testimony must be both “substantial and real.” This is to prevent a person from simply pleading the Fifth in order to get out of testifying against a friend or loved one.

The Fifth Amendment does not extend to physical characteristics

The Supreme Court of the U.S. has repeatedly held that a person does not have to testify against themselves but that this refers only to the “contents of his own mind.” The physical characteristics are not covered. This includes DNA, blood samples, writing samples, fingerprints, tattoos, etc. The court can require that a defendant give these up if there is sufficient evidence to do so.

The Fifth Amendment as it applies to evidence on computers

Even the most novice computer user is capable of password protecting information on their computers. The question is whether or not their Fifth Amendment rights are violated if they are asked to decrypt or unlock the information for the police.

The U.S. Supreme Court has not yet heard and ruled on a case with this issue. That said, there are arguments to support both sides. Police will say that a person is not being asked to offer testimony but to simply provide evidence in its original state. Those who believe in a generous understanding of the Fifth Amendment believe that asking a person to unlock their computer is similar to asking for the “contents of his own mind,” which is protected by the Fifth Amendment.

The answers are yet to be seen and it is likely that there will not be one sweeping decision that covers everything. For example, it will likely be a different story to ask a defendant to put their finger on a fingerprint sensor compared to offering details on their passwords. These cases will be especially interesting as they pertain to cybercrimes.