State v. Pittman

In the context of Article I, section 12, of the Oregon Constitution, an act is not “testimonial” whenever its performance requires an individual to use his or her mental faculties. Rather, “[t]he information that an act communicates, and not the uncommunicated use of the mind, is what makes an act testimonial.”

In connection to defendant’s prosecution for delivery of methamphetamine, the trial court ordered defendant to unlock a passcode-protected cell phone. When defendant resisted, arguing that the order violated her right against self-incrimination, the trial court held her in contempt. The Court of Appeals affirmed the contempt judgment. On appeal, defendant argued that, because “the court’s order required that she perform an act that would provide the state with incriminating testimonial evidence,” it was a violation of her right against self-incrimination. The state argued the opposite—that “compelling defendant to unlock the phone would not violate defendant’s right against self-incrimination.” “[T]o receive protection under the self-incrimination clause of Article I, section 12, a person’s statement or conduct must (1) be ‘testimonial’ evidence, (2) be ‘compelled,’ and (3) be evidence that could be used against the person in a criminal prosecution.” State v. Fish, 321 Or 48, 53, 893 P2d 1023 (1995). The Court found that the act of unlocking the phone would have provided incriminating, testimonial evidence. The Court concluded that, “to obtain an order requiring defendant to unlock a cell phone, the state must prove, beyond a reasonable doubt, that it already knows the information that that act would communicate.” The Court held that, because the trial court did not conduct the necessary factfinding to determine whether the state had met that burden, the trial court’s order violated Article I, section 12. Ultimately, the Court acknowledged that “Article I, section 12, permits a trial court order compelling a defendant to unlock a cell phone in certain circumstances, those circumstances are not present in this case.” Reversed and remanded for further proceedings.