Brief Amicus Curiae of Cordell Institute, et al. in Support of Petitioner, Andrews v. New Jersey, No. 20-937

Abstract

Summary of Argument: This Court should grant certiorari in this case in order to resolve splits among the federal circuits and state courts of last resort and to correct decisions which conflict with this Court’s historical understanding of the right against self-incrimination. In the compelled decryption cases, courts not only disagree about how this Court’s self-incrimination doctrine should be applied, they also disagree about whether the Fifth Amendment right against self-incrimination prohibits the government from compelling a person to speak, write or otherwise communicate pure testimony of an incriminating nature. This confusion stems from this Court’s decision in Fisher v. United States, 425 U.S. 391 (1976) and its concept of “testimonial communications.” This case is an excellent vehicle for this Court to resolve the confusion and clarify its decision in Fisher because the decision below, and all compelled decryption cases, are united by their application of Fisher’s framework. Moreover, compelling decryption also compels the creation of pure testimony, whether spoken, written or otherwise. As a result, the compelled decryption cases and the case below are also united by the question of whether the Fifth Amendment prohibits the compulsion of pure testimony. State v. Andrews, 243 N.J. 447, 480–81 (2020). Further, the decision below has decided important questions of federal law in a way that conflicts with relevant decisions of this Court. This Court’s current and historical understanding of the right against self-incrimination has always aligned with its common law origins, under which the Fifth Amendment prohibits the government from subjecting a person to the cruel trilemma of telling the truth and accusing oneself, committing perjury, or declining to answer and being held in contempt. Pennsylvania v. Muniz, 496 U.S. 582; 596–97 (1990). The decision below applied Fisher but contradicted this Court’s clear instruction by compelling Petitioner to choose between self-accusation through decryption, perjury, or contempt for failing to comply. The compelled decryption of digital devices also contradicts this Court’s unequivocal recognition that exposing the contents of a cell phone or computer to the government is more harmful to privacy than even “the most exhaustive search of a house.” Riley v. California, 573 U.S. 373, 396 (2014); Carpenter v. United States, 138 S. Ct. 2206 (2018). Compelled decryption, moreover, exposes the entirety of a device to the eyes of the state. The confusion, splits, and contradictions with this Court’s precedent are certain to continue if Fisher is not reexamined.