Forcing a “Low-Tech Peg” into a “Cutting-Edge Hole”: Why Applying the Pre-Digital Age Foregone Conclusion Exception to Smartphones Would Impermissibly Narrow the Fifth Amendment

The majority of courts are in agreement that the implied admissions from a person being forced to produce a cellphone passcode—that the evidence sought exists and is authentic, and that the phone’s owner possessed that evidence—are testimonial and therefore protected by the Fifth Amendment privilege against self-incrimination. But can the government force this production regardless by arguing for the application of the foregone conclusion exception to the privilege, a doctrine that the Supreme Court has never applied outside of an analogue business or tax context? In this Contribution, Heather Globerman (‘22) argues that both Supreme Court precedent and practical considerations forestall the extreme narrowing of the Fifth Amendment that would follow such an application of the foregone conclusion exception to a modern, personal, and digital context.