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The Fifth Amendment to the United States Constitution provides citizens with a number of important rights regarding criminal prosecution. Among the most important and most famous is the protection against self-incrimination. A long history of court decisions has established the basic parameters for evidence protected by the Fifth Amendment’s right against self-incrimination. However, the rapid advancement of computer technology has created an open question regarding evidence stored on computers.

If you ever feel that you are being asked by law enforcement to provide evidence against yourself, it is important to not only remember your Fifth Amendment rights but also to contact a knowledgeable Fresno criminal defense attorney who can help protect those rights.

Call Michael McKneely, Criminal Defense Lawyer at (559) 443-7442 or contact us online to discuss your particular situation.

Self-Incrimination through Testimony

The most recognizable use of Fifth Amendment right against self-incrimination is when a witness or defendant refuses to answer questions. Everyone has seen instances on television or in a movie where someone chooses to “plead the Fifth” and refuse to answer potentially self-incriminating questions while in custody or court.

The Fifth Amendment allows individuals to refuse to provide testimonial evidence if the government is seeking to compel the person to answer questions that could potentially incriminate themselves. However, it is important to note that this privilege is not unlimited. The possibility of criminal prosecution based on the testimony must be “substantial and real” for the Fifth Amendment protection against self-incriminating testimony to apply. In some instances, the court can compel testimony if the government gives the witness immunity from prosecution based on the testimony. A witness can, of course, continue to refuse to testify and face possible contempt of court sanctions. These are usually less severe though then prosecution for another offense.

Evidence Based on Physical Characteristics

Even though the Fifth Amendment protects citizens from providing testimony that could potentially incriminate themselves, those protections do not extend to personal physical characteristics. The United States Supreme Court has ruled that a citizen’s right against testimonial self-incrimination applies only to the “contents of his own mind.” Accordingly, the physical characteristics of a person must be provided even if they could be used against that person in criminal prosecution. Physical characteristics that must be provided as evidence include measurements, DNA samples, blood samples, fingerprints and writing samples. Tattoos are often photographed and shown to the jury in the context of gang charges, and the defendant can be compelled to display them to a jury.

Evidence Stored on Computers

The ability for even novice computer users to have encrypted or password-protected content on their computers in such a way that it cannot be accessed by law enforcement has created the question of whether the Fifth Amendment protects citizens from being forced to decrypt their digital information.

The United States Supreme Court has never ruled on the issue, but there are already potential arguments on both sides. Law enforcement officials can argue that a person is not being asked to provide testimony, but only to provide the encrypted evidence in its original state. Civil rights advocates counter by stating that asking someone to unlock their digital information would be asking for the contents of his own mind, which is testimony protected by the Fifth Amendment.

One example of the potential tension is an iPhone that can be unlocked with a finger touch or password. The police cannot force you to divulge a password, but they may be able to compel you to rest your finger on the sensor to unlock the phone in that manner.

How a Fresno Criminal Defense Attorney Can Help

If you are asked by law enforcement to provide evidence against yourself, it is important to remember that the Fifth Amendment provides you with the right to remain silent. You do not have to provide testimony against yourself if it could be used against you. However, there are limits to the Fifth Amendment protections and refusing to provide evidence against yourself does not protect you from the possibility of facing criminal charges. You will want to have an experienced Fresno criminal defense attorney to help safeguard your constitutional rights and defend you against any subsequent criminal charges.

If you are ever read your Miranda rights, you need to respond “I want my lawyer” in order to protect yourself and prevent additional questioning.

Attorney Michael McKneely is a skilled and knowledgeable Fresno criminal defense lawyer who has also worked as a Deputy District Attorney, which can help him find the weaknesses in the case against you.

Call Michael McKneely, Criminal Defense Lawyer at (559) 443-7442 or contact us online to set up a free and confidential consultation.