OK: 5A’s foregone conclusion rule applies to passcodes

The foregone conclusion rule applies to defendant’s Fifth Amendment claim revealing the password to his electronics would incriminate him. Reynolds v. State, 2022 OK CR 14, 2022 Okla. Crim. App. LEXIS 14 (Aug. 4, 2022):

[*P7] Various courts have applied this foregone conclusion doctrine in recent years in cases where criminal defendants are forced to disclose the password to a computer or other digital device. See, e.g., State v. Andrews, 243 N.J. 447, 234 A.3d 1254 (N.J. 2020), cert. denied, 141 S. Ct. 2623, 209 L. Ed. 2d 751 (2021). In Andrews, the New Jersey Supreme Court traced the evolution of the foregone conclusion doctrine in deciding a case involving a similar issue, namely whether a court order requiring a criminal defendant to disclose the passcodes to his passcode-protected cellular phones violated the Fifth Amendment and New Jersey’s protections against self-incrimination. Id. at 1259. Noting that the United States Supreme Court had considered the application of the foregone conclusion doctrine only in the context of document production, Id. at 1269, the Andrews court canvassed cases from lower courts in other jurisdictions which had “grappled” with applying the doctrine to cases involving the compelled production of passcodes and passwords, concluding that courts had reached “divergent results.” Id. The divergent results stemmed primarily from whether the particular court found that the password or code was the object of the foregone conclusion or whether the court found the actual contents or files on the device were the object of the foregone conclusion.

[*P8] For example, in Eunjoo Seo v. State, 148 N.E.3d 952 (Ind. 2020), the Supreme Court of Indiana considered the application of the foregone conclusion doctrine to disclosure of a passcode on a smart phone and found it did not apply. The Court held that prosecutors must show that existence of the incriminating evidence is the act of production which must be a foregone conclusion. “Even if we assume the State has shown that Seo knows the password to her smartphone, the State has failed to demonstrate that any particular files on the device exist or that she possessed those files.” Id. at 958. Other courts have taken the contrary view. See State v. Stahl, 206 So.3d 124, 136 (Fla. Dist. Ct. App. 2016) (“To know whether providing the passcode implies testimony that is a foregone conclusion, the relevant question is whether the State has established that it knows with reasonable particularity that the passcode exists, is within the accused’s possession or control, and is authentic.”) (emphasis in original); United States v. Hubbell, 530 U.S. 27, 40, 120 S. Ct. 2037, 147 L. Ed. 2d 24, (2000) (“The ‘compelled testimony’ that is relevant in this case is not to be found in the contents of the documents produced in response to the subpoena. It is, rather, the testimony inherent in the act of producing those documents.”).

[*P9] In this case, both parties agree that the foregone conclusion doctrine should control, but they disagree on how it should be applied. Reynolds contends that the State must show that the existence of the incriminating video footage on the device was a foregone conclusion, which is the approach taken in the Eunjoo Seo line of cases. The State counters that the question is whether the existence of a password, within the knowledge or control of Reynolds, and which is authentic, was a foregone conclusion. This is the approach taken by cases such as Stahl and Andrews. We find this the better analysis and hereby adopt it.