Massachusetts Supreme Judicial Court: If Proof Beyond a Reasonable Doubt that Defendant Knows Passwo

On Wednesday, the Supreme Judicial Court of Massachusetts issued a unanimous decision, Commonwealth v. Jones, No. SJC-12564, 2019 Mass. LEXIS 106 (Mass. Mar. 6, 2019), finding that where the Commonwealth seeks to compel a defendant to produce a password needed to decrypt a device, it has the burden to prove beyond a reasonable doubt that the defendant knows the password.

In this case the Commonwealth seized a cell phone from the defendant which could only be decrypted with a password. The issue in the case was whether or not the compelling the defendant to enter the password would violate his privilege against self-incrimination under the Fifth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights. If it is already established that the defendant knows the password, then the disclosure is limited. "In the context of compelled decryption, the only fact conveyed by compelling a defendant to enter the password to an encrypted electronic device is that the defendant knows the password, and can therefore access the device. . . . The Commonwealth must therefore establish that a defendant knows the password to decrypt an electronic device before his or her knowledge of the password can be deemed a foregone conclusion under the Fifth Amendment or art. 12." Id. at *11-12.

The Commonwealth was not required to establish that the defendant had exclusive ownership of the phone. LG phone records, a party's statement that she communicated with the defendant on this phone, and the defendant's own admission to the police that the phone was his, were enough to prove beyond a reasonable doubt that he knew the password.