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Can your phone be used against you as evidence?



Can your phone be used against you in a court of law? It could be an issue of how it is secured.

In today’s video Devens Hamlen discusses a case of his that has set the legal standard in the state of Maine. Watch the video to find out how your passcode could differ from your thumbprint on an iPhone.

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Below is a transcript of the video:

Can your phone be used against you as evidence?

Everyone has a right to privacy and now with basically your whole life existing on a phone or a tablet that courts are struggling with how much the government is allowed to pry into to your phone or your tablet or your computer for that matter, and search for evidence. But there was a case recently here in Maine that we won, where the state was trying to force my client to put his pass code into his phone so they could search his phone.

Because on an iPhone the only way you can search it other than breaking it apart and pulling out the master chip is through with someone entering the passcode. And so the case boiled down to whether putting in that passcode was a fifth amendment violation meaning was he potentially admitting guilt to stuff that was inside the phone.

And the judge ended up ruining that because the pass code was something that was generated from your mind and was then put down on a computer or the iPhone it was testimonial. Meaning he was incriminating himself and he had the right to be free from self-incrimination. And we filed a motion to prevent the state from being able to access his phone. And the judge agreed with us on that.

It would’ve been a different case where someone has to show their shirt because there’s blood on it or the judge had said if it was your thumbprint that’s different because it’s not a product of your mind.

The alternative for the state was that they would have to send the phone to someplace in Boston, the homeland security office, I guess there’s one or two on the East Coast, that can break into the phone and pull out the hard drive. Because this has never been decided in Maine right now the law of the state because of this case that we one with the passcodes.

Because the passcodes were generated from your mind it was testimonial and my client had a Fifth Amendment right not to produce that information.