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Can a court order a suspect to use the suspects fingerprint to unlock his or her smartphone? Or would that violate the suspects Fifth Amendment privilege against self-incrimination? I wrote about that issue here. This post updates the previous one with two new cases and some additional discussion.

Background. The Fifth Amendment provides in part that no person may be compelled in any criminal case to be a witness against himself. This privilege against self-incrimination applies during the investigative phase of a case as well as at trial. And it applies to the disclosure of information that may lead to incriminating evidence even if the information is not itself directly indicative of guilt. However, it applies only to testimonial activity, not to nontestimonial actions like providing fingerprints, blood samples, or voice exemplars. The act of producing evidence that is not itself testimonial may have a compelled testimonial aspect, as when the act of producing the evidence constitutes an admission that the evidence was in the suspects possession or control. United States v. Hubbell, 530 U.S. 27 (2000) (ruling that tax fraud charges must be dismissed because the charges were based on documents the defendant produced in response to a grand jury subpoena; the defendants act of producing the documents was testimonial because the collection and production of the materials demanded was tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of any incriminating documents; [t]he assembly of those documents was like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox).

Smartphones are often secured by passcodes or fingerprint sensors. Ive written about computer passwords, which present the same Fifth Amendment issues as passcodes, here and here. In brief, some courts view compelling a suspect to provide a passcode as requiring a testimonial act because the passcode is contained in the suspects mind, and because providing the passcode may constitute an admission that the phone belongs to the suspect or is under the suspects control. That doesnt necessarily mean that a court can never order a suspect to provide a passcode. If the court concludes that it is obvious that the phone in question belongs to the suspect so that the act of providing the passcode wouldnt further incriminate the suspect, the court may rule that the suspects knowledge of the passcode is a foregone conclusion, rendering the Fifth Amendment inapplicable. Or the court might rule that the suspect may be required to provide the passcode if given immunity for the act of providing it. Both those possibilities involve complex legal questions that I hope to explore in a future post.

Although passcodes present thorny Fifth Amendment issues, the early authority on point regarding fingerprint sensors suggests that compelling a suspect to use his or her finger to unlock a phone is not testimonial. The suspect is required only to do a physical act placing his or her finger on a sensor and need not admit anything in his or her mind. My earlier post cited the authority available at that time, but we have some new case law now and it points in the same direction.

New cases. The most significant new case is State v. Diamond, __ N.W.2d __, 2017 WL 163710 (Minn. Ct. App. Jan. 17, 2017). The court ruled that a court order compelling a criminal defendant to provide a fingerprint to unlock the defendants cellphone does not violate the Fifth Amendment privilege against compelled self-incrimination.

In brief, the police arrested a burglary suspect and found that he was in possession of a cell phone. They obtained a search warrant for the phone and a court order requiring the suspect to provide a fingerprint to unlock the phone. On appeal, the defendant argued that this violated his Fifth Amendment right to be free from self-incrimination. The reviewing court disagreed because the order did not require the defendant to do anything that was testimonial. The court observed that the order did not require him to disclose any knowledge he might have and reasoned that it was no different than an order to provide a voice exemplar or a blood sample.

Less important but also worth noting is State v. Stahl, __ So. 3d __, 2016 WL 7118574 (Fla. Dist. Ct. App. Dec. 6, 2016). Stahl is a case about a courts authority to order a suspect to provide the passcode to a phone, not a fingerprint. But in the course of discussing the passcode issue, the court stated: Compelling an individual to place his finger on [an] iPhone would not be a protected act; it would be an exhibition of a physical characteristic, the forced production of physical evidence, not unlike being compelled to provide a blood sample or provide a handwriting exemplar.

Caveat. Although requiring a suspect to press the suspects finger to a phone may not require any testimonial activity, orders on this point must be crafted carefully to avoid infringing on a suspects constitutional rights. An order requiring a suspect to unlock a phone, or to provide officers with an impression from the finger that unlocks a phone, might implicate the Fifth Amendment because such an order would require the suspect to decide which finger to use and so to share the suspects knowledge of which finger operates the sensor. Unless the foregone conclusion doctrine applies or the Fifth Amendment issue can be removed through the provision of appropriate immunity, such an order might be improper.

Worthwhile secondary sources. I cited a couple of secondary sources in my previous post. Id like to add to the list two blog posts by Professor Orin Kerr, a leading scholar in this area. His principal post on the topic is here, and a shorter one discussing the Diamond case is here.

Link:
Update on Fingerprints, Phones, and the Fifth Amendment ...

The co-founder of the Washington-based firm that commissioned the explosive and largely unsubstantiated anti-Trump campaign research dossier will reject a Senate subpoena to testify before Congress next week and invoke his Fifth Amendment rights, according to the heads of the Senate Judiciary Committee.

Glenn Simpson, the former Wall Street Journal reporter who helped start political intelligence firm Fusion GPS, has been a key figure in the Russian election meddling saga ever since the dossier, which alleged a years-long Kremlin conspiracy to elect Donald Trump and included colorful sex stories, was leaked to the press after the Republicans November victory over Democrat Hillary Clinton.

Since March, the Senate Judiciary Committee has pressed for Mr. Simpsons testimony and documents relevant to the case. His attorneys, Joshua A. Levy and Robert F. Muse, have rebutted with numerous defenses, including citing confidentiality agreements between Fusion GPS its clients. This week, a Judiciary hearing which would have featured Mr. Simpson had he voluntarily attended was canceled.

Late on Friday committee leadership executed hardball tactics to force him to tell what he knows as chairman Sen. Chuck Grassley, an Iowa Republican, and ranking member Sen. Dianne Feinstein, a California Democrat, announced theyd subpoenaed him.

Glenn Simpson, through his attorney, has declined to voluntarily attend Wednesdays Judiciary Committee hearing regarding compliance with the Foreign Agents Registration Act, the senators wrote in a statement. Therefore, a subpoena has been issued to compel his attendance. Simpsons attorney has asserted that his client will invoke his Fifth Amendment rights in response to the subpoena.

Mr. Simpsons lawyers in a letter reported by Politico, argued that this hearings purported focus on FARA [Foreign Agents Registration Act] is pretext for an exploration of Fusion GPS reported work, on behalf of other clients, to investigate the ties of Donald J. Trump, his campaign and their associates to Russia.

Wednesdays committee hearing is also scheduled to feature Donald Trump Jr. and President Donald Trumps one-time campaign manager Paul Manafort.

On Friday, Mr. Grassley and Ms. Feinstein said both Trump confidantes had agreed to negotiate to be interviewed and provide relevant documents but the Senators also reserved the right to subpoena them if necessary.

Legal battle to continue

More legal battle is expected between Mr. Simpson and the committee.

Washington insiders woke Saturday debating whether the political operatives strategy to assert his Fifth Amendment rights to protect himself against self-incrimination - would hold up or if hed put himself at risk of being held in contempt of Congress, which could mean future criminal charges.

Deeper digging into the dossier could also be embarrassing for both Democrats and Republicans.

Mr. Simpson hired former British intelligence agent Christopher Steele in 20015 to compile opposition research on then-candidate Trump. The resulting dossier which was reportedly sourced from the Kremlin allegedly received initial financial support from anti-Trump Republicans before being taken over and distributed by Democrats. It contained a lurid and largely discredited tale of a years-long Russian effort to elect the former reality TV star and property developer.

The Trump White House has vigorously denounced the allegations as a pile of garbage and FAKE NEWS! ever since online news service BuzzFeed posted all 35 pages.

This week The Washington Times reported that the FBI is routinely using the dossier as a checklist that agents tick off as they question witnesses in its Russia investigation. Sources told The Times it was strange that a gossip-filled series of memos is guiding the bureaus work.

For months Mr. Grassley has pushed to learn more about Mr. Steeles FBI relationships, which allegedly date back to help the former British spy provided the bureaus investigation of FIFA chief Sepp Blatter, whose 17-years reign over the football World Cup governing body ended amid corruption allegations.

Former FBI Director James Comey, whom Mr. Trump fired in May, has refused to publicly answer questions about the bureaus relationship with Mr. Steele.

Additional drama next week is expected from Mr. Trump Jr. and Manaforts testimony. Democrats are eager to question both about a meeting they held last year with a Russian lawyer who promised to provide comprising information about Ms. Clinton. Republicans are keen to start clearing the air on an issue that has distracted Washington from Mr. Trumps agenda.

On Friday, Reuters reported it had found public records contradicting statements by the lawyer who met Mr. Trump Jr. and Mr. Manafort that shed never worked for the Russian government. The news agency found Natalia V. Veselnitskaya had once represented Russias top intelligence agency, the F.S.B., which replaced the K.G.B. after the fall of the Soviet Union.

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Boss of firm behind anti-Trump dossier to plead the Fifth at congressional hearing - Washington Times

The Second Circuit yesterday became the first court of appeals to address a criminal appeal regarding the governments investigation into the manipulation of the London Interbank Offered Rate (LIBOR). Its decision in United States v. Allen reversed the convictions of two former Rabobank employees accused of using their roles in the banks LIBOR submission process to rig the global interest benchmark, and not only reversed the convictions but dismissed the operative grand jury indictment. The court concluded that the government had improperly used the defendants compelled testimony against them, holding that the Fifth Amendments prohibition on the use of compelled testimony applies even when the testimony was compelled by a foreign sovereign. The decision may well have a significant impact on the increasing number of extra-territorial investigations conducted by the United States Department of Justice (DOJ), in which it partners with foreign agencies to investigate and prosecute cross-border activity.

The pair Anthony Allen and Anthony Conti were initially investigated by the United Kingdoms Financial Conduct Authority (FCA). During the investigation Allen, Conti, and other Rabobank employees were interviewed by the FCA; Allens and Contis interviews were compelled by threat of imprisonment, though they were granted direct use immunity. The FCA later brought an enforcement action against one of their co-workers, Paul Robson, disclosing relevant evidence against him, including Allens and Contis compelled testimony. During this exchange, Robson reviewed the materials over the course of two or three successive or nearly successive days, admitting to having underlined, annotated, and circled certain passages of both Allens and Contis testimony. But, in short order, the FCA then dropped the case and the DOJ stepped in.

A grand jury returned indictments against Allen and Conti in 2014, charging both with one count of conspiracy to commit wire fraud and bank fraud, and several counts of wire fraud. Robson was the sole source of certain material information for the indictment, including the source of testimony provided by FBI agent to the grand jury that Allen and Conti had participated in rigging LIBOR.

Before trial, the defendants moved under Kastigar v. United States, 406 U.S. 441 (1972), to dismiss the indictment or suppress Robsons testimony. The Supreme Courts decision in Kastigar held that the government may compel testimony from witnesses, in spite of their invoking the Fifth Amendment privilege against self-incrimination, where it confers immunity from use of that testimony and evidence derived therefrom in a subsequent criminal case. The upshot is that the government must show in cases where such testimony is at issue that its proof rests on evidence other than the compelled statements and the fruits thereof. The district court in this case resolved that it would instead address any Kastigar concerns i.e., issues regarding the use of compelled testimony under Fifth Amendments Self-Incrimination Clause at trial.

The pair were convicted. After a post-trial Kastigar hearing, the district court held that Robsons reading, marking up, and annotating the compelled testimony, and the fact that material parts of the FBI agents grand jury hearsay testimony had been derived solely from Robson, were not enough to taint the evidence Robson provided because the government had shown an independent source for such evidence, to wit, [Robsons] personal experience.

The Second Circuit disagreed. It held first that the Fifth Amendments prohibition on government use of compelled testimony in American criminal proceedings applies, even when a foreign sovereign is the actor that compelled the testimony, noting that Amendment protects against the use and derivative use of compelled testimony against an accused in such a proceeding.

Second, it held that when the government attempts to use a witness like Robson, who has been substantially exposed to a defendants compelled testimony, it is the governments burden under Kastigar to show, at a minimum, that the witnesss review of the compelled testimony did not shape, alter, or affect the evidence used by the government.

It third held that a witnesss bare, generalized incantations that reviewing those materials did not taint his or her testimony (as was the case here via leading questions of Robson at the Kastigar hearing, which produced nothing more than bare, self-serving denials from Robson) are insufficient to meet this burden of proof.

And it lastly it had no trouble concluding that introducing testimony provided by Robson a key cooperator and prominent witness before the trial and grand jury (via a hearsay presentation) was not harmless error beyond a reasonable doubt. Robsons had been the only testimony refuting Allens and Contis central argument that they had not actually engaged in rigging the LIBOR benchmark. This finding as to testimony both at trial and before the grand jury resulted in the dismissal of the indictments against Allen and Conti.

The Court rejected the governments counterarguments, including that prohibiting the use in United States Courts of testimony compelled by a foreign authority could seriously hamper the prosecution of criminal conduct that crosses international borders, by among other things, inadvertently or negligently obstructing federal prosecutions. The court noted that this risk already exists within our own constitutional structure, and that the practical outcome of our holding today is that the risk of error in coordination falls on the U.S. Government (should it seek to prosecute foreign individuals), rather than on the subjects and targets of cross-border investigations.

Original post:
Fifth Amendment Concerns Result in Overturned Convictions in First ... - Lexology (registration)

By Sam Lounsberry

Reporter-Herald Staff Writer

Corzo-Avendano

A 13-day trial is set to start Monday for Tolentino Corzo-Avendano, who has been charged with first-degree murder in the February 2016 stabbing attack in a Fort Collins home that left a woman blind in one eye and her grandmother dead.

Attorneys met to discuss the course of the upcoming trial at a hearing Wednesday, and the planned testimony of a former co-defendant in the murder case became a point of contention between prosecution and defense teams.

Corzo-Avendano, 27, was arrested after the reported stabbing of 26-year-old Sara Mondragon and her 61-year-old grandmother Cathy Mondragon, who died shortly after the attack.

Sara Mondragon is now reportedly blind in her left eye and can no longer walk.

A co-defendant of Corzo-Avendano, 42-year-old Tomas Vigil, was also originally charged with first-degree murder in the incident, but has since accepted a plea agreement for admitting to armed burglary with a crime of violence sentence enhancer.

Vigil is still being held in the Larimer County Jail, though, and because the District Attorney's Office plans to call him as a witness in its case against Corzo-Avendano during trial, Vigil's pending testimony was discussed between prosecuting and defense attorneys Wednesday.

Deputy District Attorney Nick Cummings said Vigil should not be allowed to be cross-examined by Corzo-Avendano's defense counsel due to Vigil's likely choice to remain silent and plead the Fifth Amendment.

However, defense attorney Kathryn Hay argued a witness's right to the Fifth Amendment is outstripped by a defendant's right to a full legal defense as outlined by the Sixth Amendment, and called Vigil's upcoming testimony "ripe for cross-examination."

8th District Judge Julie Kunce Field, who will preside over the trial, ordered the District Attorney's Office to file a written motion on the matter, and will rule on the course of Vigil's testimony after Hay and defense attorney Matthew Landers file a written response.

Previous motions filed by Landers included one to suppress from evidence given to the jury statements Corzo-Avendano made during his arrest and while in custody of Fort Collins police, and another to suppress phone conversations between Corzo-Avendano and Sara Mondragon while the former was in custody at the Larimer County Jail prior to the alleged stabbing assault.

Defense counsel has argued that police elicited responses from Corzo-Avendano illegally, prior to reading him his Miranda rights and after he evoked his right to have counsel present.

Prosecutors have not offered Corzo-Avendano a plea deal throughout the proceedings.

Sam Lounsberry: 970-635-3630, slounsberry@prairiemountainmedia.com and twitter.com/samlounz.

Continue reading here:
Testimony of co-defendant contentious in upcoming Fort Collins murder trial - Loveland Reporter-Herald

Originally published on Just Security.

Over the weekend, one of President Donald Trumps personal lawyers, Jay Sekulow, refused to rule out the possibility that the president would pardon his associates, or even himself, in the Russia investigation. SekulowtoldABCsThis Week: He can pardon individuals, of course. Thats because the founders of our country put that in the United States Constitution: the power to pardon. But I have not had those conversations, so I couldnt speculate on that.

The issue of whether Trump could use his pardon power returns us to thedebateover whether a sitting president may be indicted or whether the Constitution requires impeachment and removal prior to indictment. Assomehave noted, that is almost a purely academic question because it is highly unlikely that Special Counsel Robert Mueller would indict Trump while still in office. In any event, there is the potential for post-presidency criminal exposure. In addition, Trumps family members and close associates could also be under investigation. This means Trump could be tempted to insulate them by granting pardons before theyre convicted of anything.

Presidents tend to save their most controversial grants of clemency for the end of their term in order to avoid the ensuing political firestorm while in office. But a Russia-related pardon would be particularly incendiary politically. That may not mean much to Trump given that a defining element of his rise has been his willingness to disregard longstanding norms and upend convention. He has mocked the disabled, attacked a Gold Star family, joked about sexual assault, savaged the free press, and fired the FBI director investigating Russian interference.

Aside from the political dynamics, granting a pardon in the context of the Russia investigation also raises fundamental questions of constitutional law.

Presidential pardon power derives from a specific grant in theConstitution. Article II, Section 2 vests the president with the Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment. The Presidents pardon power is limited to federal offenses, which include federal prosecutions in U.S. territories like the District of Columbia and Puerto Rico. Clemency requests, which include both requests for a pardon and requests that a sentence be commuted, typically flow through the Office of the Pardon Attorney at the Department of Justice (see the Justice DepartmentsFAQs). The Justice Department evaluates clemency requests pursuant tostandardsset forth in the U.S. Attorneys Manual. However, the president may bypass that process given that it is a power expressly reserved for the president.

A president can prospectively pardon individuals for crimes that have occurred but have not been charged. In the most famous example, President Gerald Ford pardoned Richard Nixon even though he was not under indictment. President Fordsproclamationincluded a full, free and absolute pardon unto Richard Nixon for all offenses against the United States which he, Richard Nixon, has committed or may have committed or taken part in during his presidency. Similarly, President George H.W. Bush issued full pardons to six people implicated in the Iran-Contra Affair,some of whom still faced trial.

The Nixon pardon was a political disaster that ended Fords presidential honeymoon, but it also sparked a debate among legal commentators about whether it was constitutional. Mark Rozell gives a brief and interestingtreatmentof the debate. Some argued it was beyond the power of the president to relieve a person of criminal liability for hypothetical offenses (see Edwin Brown Firmage and R. Collin Magnumhere). However most sources suggest a prospective pardon is within the presidents constitutional authority. InEx Parte Garland, 71 U.S. 333, 380 (1867), the Supreme Court described the power in broad temporal terms:

The [pardon] power extends to every offense known to the law, andmay be exercised at any time after its commission, eitherbefore legal proceedings are taken, or during their pendency, or after conviction and judgment. (emphasis added).

A 1995 Office of Legal Counsel (OLC) opinionnotesthat presidents throughout U.S. history have asserted the power to issue pardons prior to conviction, and the consistent view of the Attorneys General has been that such pardons have as full an effect as pardons issued after conviction. It cites an Attorney General opinion from the 1850s, which defends the presidents preemptive power on the grounds that the act of clemency and grace is applied to the crime itself, not to the mere formal proof of the crime. Members of Congress have occasionally contemplated a constitutional amendment to preclude a future pardon like Nixon received, which itself suggests Congress acquiesces to the Executive Branchs view. Most legal authorities indicate President Trump has the power to grant prospective pardons for criminal acts not subject to formal charge.

Three days before Nixon resigned, OLC issued anopinionthat [u]nder the fundamental rule that no one may be a judge in his own case, the President cannot pardon himself. Most legal experts supported that view, although the arguments as to why vary from natural law (first principles such as no man can be a judge in his own case) to constitutional structure (a self-pardon would defeat the purposes of Article I, Section 4, which expressly allows officeholders removed by impeachment to be subject to criminal prosecution). A handful of Republican members of Congress cited the possibility of self-pardon as a justification for their votes to impeach President Bill Clinton, which is discussed in the introduction to this Oklahoma Law Reviewarticle. While some doubt remains about whether the president has the authority to pardon himself, a self-pardon is most likely legally ineffective from shielding a president from future federal prosecution.

In its Watergate opinion, OLC also suggested that the president could invoke Section 3 of the Twenty-Fifth Amendment to allow the vice president, in his role as acting president, to pardon the president. If the President declared that he was temporarily unable to perform the duties of his office, the Vice President would become Acting President and as such he could pardon the President. Thereafter the President could either resign or resume the duties of his office, the opinion stated. However, if the president and vice president conspired to launder away the presidents criminal liability, it would trigger a seismic political event. It would also tarnish the vice presidents standing as a politically viable successor in the event of impeachment. However, I have not yet seen a legal obstacle to that kind of scheme.

As for the special counsel, a prospective pardon would have a narrowing effect on his authority, as it would end any criminal jeopardy arising from his investigation. However, provided there are still active leads and targets, the special counsel mandate would continue. It would raise interesting legal questions. For example, a pardoned individual could still potentially serve as an unindicted coconspirator, which triggers benefits to a prosecution such as a hearsayexceptionfor co-conspirator statements.

Congressional investigations serve legislative policy and oversight goals rather than criminal enforcement goals, so a pardon does not end an Article I inquiry. But there could be other counterintuitive effects of a pardon on the ongoing congressional investigations into Russias interference in the 2016 election and whether there was any coordination with the Trump campaign. For example, it could potentially remove federal legal jeopardy in a manner that may defeat an assertion of the Fifth Amendment privilege against self-incrimination. Were Trump to pardon his former national security adviser, Michael Flynn, tomorrow, Congress might be able to get a court order requiring Flynn to testify before the committees because he no longer faces federal criminal prosecution. That court order or resulting congressional contempt finding, in turn, could theoretically be enforced by coercive contempt (i.e., jailing until such time as the witness provides ordered testimony). Because coercion serves process integrity goals rather than criminal goals, that enforcement power probably could not be defeated by another presidential pardon.

The criminal and congressional Russian investigations should proceed with integrity and without interference. With Trump at the helm and his family under scrutiny, pardon power hangs over the investigations like a sword of Damocles. The pardon sword is largely held overhead by a thread made of political, rather than legal, fiber.

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Are There Limits To Trump's Pardon Power? - HuffPost