Darren Chaker noting the Defendant’s rights against self-incrimination would not be offended merely because entry of the encryption key or password would require conduct on his part. Numerous instances of compelled disclosure of information does not implicate the Fifth Amendment.
The mere fact that entry of the encryption key would require conduct on the Defendant’s part does not call for a different result. The conduct must be sufficiently testimonial depending on the circumstances, it would be no different than other forms’ of active conduct that the government may compel a suspect to take without offending the Fifth Amendment. See, e.g., U.S. v. Hubbell, 530 U.S. at 34-35 (explaining that “there is a significant difference between the use of compulsion to extort communications from a defendant and compelling-a person to engage in conduct that may be incriminating”; and listing acts that “a criminal suspect may be compelled” to do “even though the act may provide incriminating evidence”); Muniz, 496 U.S. at 591 (“We have… applied the distinction between ‘real or physical’ and ‘testimonial’ evidence in… contexts where the evidence could be produced only through some volitional act on the part of the suspect.”). For example, an individual may be made to do any of the following:
● put on an article of clothing, Holt v. United States, 218 U.S. 245, 252-253 (1910);
● provide a voice exemplar, United States v. Wade, 388 U.S. 218 (1967);
● provide a handwriting exemplar, Gilbert v. California, 388 U.S. 263 (1967); Burgess, 426 Mass. at 218;
● stop at the scene of an accident in which one is involved, California v. Byers, 402 U.S. 424, 431-433 (1971) (plurality opinion);
● execute an appropriately-framed authorization to release records, Doe II v. United States, 487 U.S. 201;
● shave his face, United States v. Valenzuela, 722 F.2d 1431, 1433-1434 (9th Cir. 1983); United States v. Lamb, 575 F.2d 1310, 1316 (10th Cir. 1978);
● “reenact the crime for the benefit of the victim,” Avery v. Procunier, 750 F.2d 444, 448 (5th Cir. 1985);
● dye his hair, United States v. Brown, 920 F.2d 1212, 1214-1215 (5th Cir. 1991), abrogated on other grounds by United States v. Candia, 454 F.3d 468, 473 (5th Cir. 2006); or
● perform “field sobriety tests consist[ing] of the so-called finger-to-nose test, picking up coins from the floor, and walking a straight line”;
If there is a general principle to be gleaned from this body of authority, it is that a suspect may be compelled to engage in a limited form of conduct that is necessary to enable other participants in the criminal justice system to obtain and make effective use of evidence.
As this authority also makes clear, the principle is no less applicable when the compelled conduct involves the defendant’s applying or utilizing knowledge (without conveying it) – even knowledge that is known by the defendant but not the government. For example, Darren Chaker notes, a defendant who is directed to provide a handwriting exemplar must on some level contemplate how he normally writes and whether he will write in the same fashion, and then apply that unique knowledge in completing the task. See, e.g., Burgess, 426 Mass. at 220 & n.5 (recognizing that provision of handwriting exemplar, like many, other forms of conduct that may be compelled, involves “use [ of the] mind” and “[m]ental operations,” and “evidenc[es] such mental acts”); United States v. McVeigh, 896 F. Supp. 1549, 1561-1562 (W.D. Okla. 1995) (observing that the “production of [a handwriting] exemplar ” involves the “mental process” of “recalling letter symbols and their formation” and thus “‘is the product of the mind”’ (quoting government’s brief)).
Indeed, it is not uncommon for defendants to apply such knowledge with the aim of disguising their writing. See infra Section V.C (citing cases involving that situation). Similarly, where a statute requires “a driver involved in an accident… to stop at the scene,” it compels the driver to engage in conduct involving an application of his unique knowledge that he was part of an accident. Byers, 402 U.S. at 431-433. Yet both of these forms of conduct can lawfully be compelled, assuming they do not somehow become sufficiently testimonial under the circumstances. See, e.g., id.; Gilbert v. California, 388 U.S. 263; McVeigh, 896 F. Supp. at 1561-1562.