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State of Illinois v. Sneed
Brief of the American Civil Liberties Union, the American Civil Liberties Union of Illinois, the Electronic Frontier Foundation, the National Association of Criminal Defense Lawyers, and the Illinois Association of Criminal Defense Lawyers as Amici Curiae in Support of Defendant–Appellant.
Argument: This case presents important questions of first impression in this Court: whether the privileges against self-incrimination found in the Fifth Amendment to the United States Constitution and article I, section 10 of the Illinois Constitution1 preclude the State from forcing a criminal defendant to recall and enter the passcode to his encrypted cell phone, thereby delivering the phone’s contents to the government for use against him in a criminal proceeding. They do. Under long-standing precedent, the State cannot compel a suspect to assist in his own prosecution through recall and use of information that exists only in his mind. See Curcio v. United States, 354 U.S. 118, 128 (1957). The realities of the digital age only magnify the concerns that animate these state and federal privileges. Here, however, the Appellate Court rejected the application of those privileges, holding that the State could compel Mr. Sneed to deliver information to be used against him in his own prosecution. Sneed, 2021 IL App (4th) 210180.
Resnick v. United States
Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on Petition for Writ of Certiorari).
Argument: Two additional arguments underscore the importance of the questions presented. First, the natural corollary to the well-recognized rule that a defendant's choice to remain silent may not be used against him is that a refusal to submit to a polygraph examination should not be used as incriminating evidence. This corollary is all the stronger given that the defendant's refusal is not just a refusal to submit to questioning by authorities, it is a refusal to submit to unreliable scientific testing. Second, the Seventh Circuit's plain error review mistakenly rests upon an analysis akin to the "clearly established law" doctrine. Further it relies on an ex post facto determination as to the strength of the prosecution's case. If a constitutional right can be set aside because the circuit believed the prosecution's case was "overwhelming," then the constitutional right has little meaning.