Foregone Conclusion Doctrine Allows Government to Make Criminal Defendant Disclose Computer Password

Can The Police Make You Turn Over Your Computer Password?

Note: this article refers to a Superior Court case which has been overruled by the Pennsylvania Supreme Court. Click here to learn more

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Davis, holding that the trial court properly ordered the defendant in a child pornography possession case to provide police with his computer password. Although the Third Circuit previously allowed prosecutors to obtain a similar order in a federal prosecution, Pennsylvania courts had not yet addressed the issue. Under this decision, prosecutors may now compel a defendant to produce the password to a computer or cell phone if the prosecution can satisfy the “foregone conclusion doctrine.”

In Davis, the defendant was charged with possession of child pornography and related offenses. Officers testified that they were able to download child pornography from the defendant using the eMule peer-to-peer file sharing network. As the officers were downloading the materials, they were able to determine the IP address of the computer that was uploading it. The officers then traced the IP address to the defendant’s internet account and house. They obtained a search warrant and executed the warrant at the defendant’s home. During the search, they seized a desktop computer which was protected by a special encryption software. The officers were unable to access the computer due to the encryption, and the defendant refused to provide them with the password.

The defendant did, however, make a number of inculpatory statements. He confirmed that he lived alone and that the computer was his. He told police he had prior arrests for child pornography, and he told them that he did not understand why it was illegal. He also stated that he liked 10, 11, 12, and 13 year olds, and he told police that the password was sixty-four characters and that he would not turn it over because “We both know what’s on there. It’s only going to hurt me.” The defendant then told the agents that he could not remember the password and that although the drive was encrypted, the agents already knew what was on the hard drive.

After the defendant was charged with two counts of distribution of child pornography and the criminal use of a communication facility, the Commonwealth filed a motion to compel the defendant to produce the password to the computer. The trial court granted the motion, and the defendant filed an interlocutory appeal to the Superior Court. Although a defendant may not ordinarily appeal a ruling on a pre-trial motion, the Superior Court permitted the defendant to appeal in this case under a limited exception to that general rule.

The Foregone Conclusion Doctrine

The Superior Court reached the merits of the appeal and concluded that the trial court properly ordered the defendant to produce the password under the foregone conclusion doctrine. The foregone conclusion doctrine is a limited exception to the general Fifth Amendment protection against self-incrimination. Ordinarily, a court may not compel a defendant to testify or say something that could incriminate him or her. For the Fifth Amendment to apply, however, the communication must be testimonial, incriminating, and compelled. Under the foregone conclusion doctrine, however, the courts have ruled that requiring a defendant to produce a password under certain circumstances is not testimonial because the government already knows that the defendant has the password. Thus, if the prosecution can show that the following three factors  are present, a defendant may be compelled to produce a passcode to a phone or computer. The factors are:

1. The Government has knowledge of the existence of the evidence demanded,

2. The defendant possessed or controlled the evidence, and

3. The evidence is authentic.

The Government also must be able to describe with reasonable particularity the documents or evidence it seeks to compel.

Here, the Superior Court found that the foregone conclusion doctrine applied because it would not be testimonial for the defendant to give up the password. The Court found the police testimony showed that based on the investigation and the statements of the defendant, the Commonwealth knew the passcode existed, that it was within the control of the defendant, and that it was authentic. Further, based on the defendant’s incriminating statements, it was very likely that the computer would contain illegal child pornography. Therefore, the Court ruled that the trial court properly ordered the defendant to produce the password.

Fifth Amendment Implications of the Foregone Conclusion Doctrine

Clearly, the foregone conclusion doctrine drastically reduces the protections provided by the Fifth Amendment. By making a relatively limited showing that the defendant probably knows the password and the computer probably has illegal contraband on it, the Commonwealth may now essentially force a defendant to confess in that the act of providing the password further establishes that the defendant owns the computer and its contents.

This case also shows the importance of exercising your Fifth Amendment rights immediately when the police first show up and start asking questions. If the defendant had not admitted ownership of the computer, told police that he knew the password, and implied that police were correct in their assumption that the computer contained child pornography, the government may not have been able to satisfy the requirements of the foregone conclusion doctrine. It is absolutely critical that any suspect in a crime speak with an experienced criminal defense attorney before talking to the police as it is often very difficult for prosecutors to prove these types of cases without a confession. 

Award-Winning Philadelphia Criminal Defense Lawyers

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If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully defended thousands of clients at the trial level on appeal. We offer a complimentary 15-minute criminal defense strategy session to anyone who is under investigation or facing criminal charges. Call 267-225-2545 to speak with an experienced and understanding defense attorney today. 

PA Superior Court Finds Sexually Violent Predator Classification Unconstitutional

More Changes for Pennsylvania's Unconstitutional Megan's Law Statute

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Butler, finding that Pennsylvania's system of classifying certain sex offenders as Sexually Violent Predators is unconstitutional. The Court held that that 42 Pa C.S.A. § 9799.24(e)(3), the section of the Sexual Offender Registration and Notification Act (“SORNA) that deals with designating an individual as a Sexually Violent Predators (“SVP”), is unconstitutional. This decision could impact thousands of individuals throughout Pennsylvania. Further, this is yet another case where an appellate court has found a section of the SORNA statute unconstitutional. If you are charged with a SORNA offense, it is imperative that you contact an attorney who is familiar with this rapidly evolving area of law.

Commonwealth v. Butler 

In Butler, the defendant was a 21-year-old man who repeatedly engaged in sexual intercourse with a 15-year-old girl. In September of 2014, Butler was charged with statutory sexual assault, criminal use of a communication facility, manufacturing child pornography, and corruption of minors. In July of 2016, he pleaded guilty to statutory sexual assault and corruption of minors. As a result of pleading guilty to corruption of minors, Pennsylvania law required that he undergo an assessment by the Sexual Offender Assessment Board (“SOAB”) to determine whether or not he fit the classification as an SVP. § 9799.24(a) of SORNA requires that every defendant who is convicted of a sex offense undergo the SOAB evaluation before sentencing for a SORNA offense. The SOAB concluded that Butler was a Sexually Violent Predator, leading to a hearing before the trial judge on the issue. After the SVP hearing, the trial judge found that the Commonwealth met its burden, and the judge classified Butler as a Sexually Violent Predator. Butler also received a sentence of 12 to 30 months of incarceration and 90 months of probation. He appealed. 

How Does Someone Get Labeled AN SVP?

As stated above, after a conviction for a SORNA offense an individual must be assessed the SOAB to determine whether they meet the classification as an SVP. According to § 9799.12 of the SORNA, an individual who is an SVP is a person with “a mental abnormality or personality disorder that makes the individual likely to engage in predatory sexually violent offenses.” In making its assessment, the SOAB will look at 15 factors to determine whether someone meets the classification as an SVP. § 9799.24 lists factors that the SOAB will consider including: the specific facts of the underlying case, the age of the defendant, the age of the complainant, the prior criminal record of the defendant, drug use, whether the defendant has any mental health illnesses. 

If the SOAB makes its determination that an individual meets the requirements for SVP classification, the District Attorney must then file a praecipe to have a hearing before a judge to determine whether or not the defendant should be labeled an SVP. Notably, the Commonwealth must meet this burden by clear and convincing evidence. This is a lesser standard than the beyond a reasonable doubt standard which is required to convict someone of a criminal offense. Further, a defendant does not have the right to have a jury determine whether the defendant is an SVP.

At the SVP hearing, the Commonwealth will present its case as to why the court should find the defendant an SVP. Typically, this involves testimony from the SOAB evaluator who assessed the defendant. The defendant would have the opportunity to cross-examine any witnesses the Commonwealth presents, and the defendant may also present evidence as to why he or she does not meet the characteristics of an SVP. For example, a defendant may call an expert witness to testify that based on an independent assessment of the relevant facts, it is their expert opinion that the defendant is not an SVP. After all the evidence is presented, the statute permits the judge to make a determination, using the clear and convincing evidence standard, as to whether or not the Commonwealth proved that the defendant is a Sexually Violent Predator.  

It is important to note that the SVP procedure can result in even defendants who were convicted of relatively minor sex offenses like misdemeanor Indecent Assault being labeled as SVPs. In most cases, Indecent Assault results in a defendant being required to register as a Tier I Sex Offender. Tier I Sex Offenders face the fewest restrictions in terms of registration requirements and only have to register for fifteen years. However, the SVP procedure can result in someone who would normally be a Tier I Sex Offender being required to register for life subject to the most severe restrictions as a Sexually Violent Predator. 

What Are the Consequences of Being Labeled an SVP?

If a court finds that an individual is an SVP, there are several consequences. First, the defendant must register for life. Further, the victim of the underlying offense must be notified of where the defendant lives and works; the community also receives notification about where the individual lives, works, eats, attends school, spends his or her leisurely time; and the person is subjected to lifetime counseling. As such, this designation carries serious collateral consequences beyond just a period of incarceration or probation. 

For a considerable period of time, Pennsylvania courts held that these registration requirements were civil, rather than punitive in nature. However, this all changed with the Pennsylvania Supreme Court’s landmark decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017).   

The Pennsylvania Superior Court Finds § 9799.24 Unconstitutional   

In Muniz, the Pennsylvania Supreme Court held that the SORNA registration requirements were punitive and not civil. This is significant because the United States Supreme Court in Alleyne v. United States held that any fact that increases the mandatory minimum for a sentence must be proven beyond a reasonable doubt. In other words, the state must prove every element of the offense (including facts that increase a sentence) beyond a reasonable doubt.    

In Butler, had there been no SVP hearing, appellant would have had to register for 15 years.  However, because he was classified as an SVP, he had to register for life. Thus, the Butler Court held that this punishment was illegal because the court did not make its determination based on the beyond a reasonable doubt standard and because the statute allows the judge to make the determination instead of giving the defendant the right to a jury. 

The Pennsylvania Superior Court did not limit its ruling to Butler's specific case. Instead, it halted all future SVP hearings. The Court reasoned that because § 9799.24 is inherently flawed, trial courts are no longer allowed to hold SVP hearings until the General Assembly revises the statute to make it compliant with both the Pennsylvania and United States Constitutions.

Award-Winning Philadelphia Criminal Defense Lawyers for Sex Crimes and SORNA Offenses

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SORNA cases can be very complicated, and there is no question that the consequences are dramatic. If you are charged with a SORNA offense, you need an attorney who has the knowledge and expertise to defend your case. Likewise, if you are improperly classified under the SORNA statute, you need an attorney who can help you fix your registration tier. It is not clear whether the Commonwealth will appeal the decision in Butler or whether defendants who have already been classified as SVPs will be required to file a PCRA Petition within sixty days of the decision. Thus, it is important to act quickly in order to avoid waiving any rights to re-classification. Our award-winning Philadelphia criminal defense lawyers have successfully fought countless cases at trial and on appeal. We offer a free 15-minute criminal defense strategy session to any potential client who is under investigation or facing active criminal charges, and we offer a $100 Megan's Law/SORNA consultation on whether we may be able to help you change your registration tier. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today. 

Doctor May Not Provide Opinion That Child Was Sexually Assaulted Without Physical Evidence of Abuse

Expert Opinions in Sexual Assault Cases

In Commonwealth v. Maconeghy, the Pennsylvania Supreme Court has just held that a child sexual abuse evaluator may not testify to his opinion that a child was sexually assaulted where the opinion is based solely on the evaluator’s apparent acceptance of the child’s reporting and description of the abuse.

In Maconeghy, the defendant’s sixteen year old stepdaughter reported that she had been raped and otherwise sexually abused on multiple occasions by the defendant when she was eleven years old. Based on her statement, the defendant was arrested and charged with various sex offenses, including rape by forcible compulsion and rape of a child. At trial, the Commonwealth presented the testimony of both the complainant and a pediatrician who evaluated the complainant to determine whether she suffered from sexual abuse.

The Testimony at Trial

After the complainant testified to the abuse, the Commonwealth called the pediatrician to testify to the results of his interview and examination of the complainant. He testified that he had conducted a physical exam of the complainant, and that the physical exam did not reveal any evidence of abuse. In his opinion, however, a physical examination was unlikely to detect evidence of the abuse outside of the first seventy-two hours following an occurrence of a sexual assault.

On cross-examination, the defense attorney repeatedly asked the doctor to concede that there was no physical or medical evidence of abuse. The doctor refused to concede this point, replying that based on the history provided by the complainant, it was clear that she had been sexually abused. Further, on questioning from the prosecution, the doctor testified that he strongly believed that the child had been victimized.

The Appeal

Based on this testimony, the defendant was convicted. Shortly thereafter, the defendant appealed. The Pennsylvania Superior Court reversed the sexual assault convictions, finding that although the defense had opened the door to some of the doctor’s personal opinion by questioning him on cross-examination, the prosecution had pushed it too far on re-direct examination.

The Pennsylvania Supreme Court has now upheld the Superior Court’s decision to reverse the conviction. The Court held that an expert witness may not express an opinion that a particular complainant was the victim of a sexual assault based upon witness accounts couched as history, at least in the absence of evidence of physical abuse. The Court recognized that such opinion testimony from an expert witness usurps the function of the jury. In other words, it is the jury’s job to determine whether or not the crime was committed. The doctor cannot testify that the crime was committed without intruding on that key function of the jury.

Instead, the doctor may testify only to the medical findings of the examination – that is, whether there was evidence of physical abuse and whether evidence of physical abuse would always be present following an allegation of sexual assault. The Court held that it is extremely important to limit the purported medical testimony because of the potential power and persuasiveness of testimony “by those clothed with the mantle of professional expertise,” meaning it will be very difficult for a jury to disregard the testimony of a respected medical doctor.  

Accordingly, the Court upheld the decision of the Superior Court, and the defendant will receive a new trial. The Court declined to rule on whether a doctor would be permitted to testify to this type of opinion in a case with actual physical evidence of abuse. Thus, that remains an open question.

The Impact of the Court's Decision in Child Rape and Sexual Assault Cases

The Court’s decision in Maconeghy is extremely important because it is very common for the prosecution to call these types of expert witnesses in rape and sexual assault cases. This is particularly true in cases involving allegations of child abuse and sexual assault on children. In many cases, complainants wait years after the alleged incident to make any reports to the authorities, and therefore, the case will often come down to the word of the complainant versus the word of the defendant.

By calling respected medical doctors to testify to their opinion that the complainant is telling the truth, the Commonwealth is often able to improperly shroud the testimony of the complainant in a shield of authority and credibility because of the impressive credentials and respectability of the medical doctor. The real question in these cases is whether the jury should believe the complainant’s testimony, but permitting doctors to testify that they believe the complainant makes it much harder for the jury to keep an open mind and reject false testimony. Therefore, this opinion will make it possible for many defendants to have a fair trial by limiting the improper influence of a medical doctor who has no specialized training in determining whether or not a complainant is lying.

Award-Winning Philadelphia Criminal Defense Lawyers

If you are facing criminal charges or allegations of sexual assault, we can help. Our award-winning Philadelphia criminal defense lawyers have successfully represented thousands of clients. We offer a free criminal defense strategy session to any potential client who is facing criminal charges or who may be under investigation for a crime. We are experienced and understanding professionals who are well versed in recent case law and who will fight to use the law to your benefit. Call 267-225-2545 to speak with one of our defense attorneys today.

Read the Opinion:

http://www.pacourts.us/assets/opinions/Supreme/out/25655768.pdf?cb=1

PA Superior Court: Child Porn Convictions Arising Out of Same Case Do Not Trigger Lifetime Megan’s Law Registration

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Leonard. In Leonard, the Court found that the trial court erred when it required the defendant to register as a Tier III, lifetime Megan’s Law offender after the defendant pleaded guilty to multiple counts of distribution of child pornography, possession of child pornography, and criminal use of a communication facility. Because distribution of child pornography, which was the most serious charge in terms of SORNA registration, is only a Tier II offense, the trial court should have required the defendant to register as a Tier II offender for 25 years.

In Leonard, the defendant pleaded guilty to various counts of distributing and possessing child pornography as well as criminal use of a communications facility (“CUCF”). At sentencing, the defense attorney argued that the defendant should be treated as a Tier II sex offender because all of the convictions arose from the same criminal episode and the defendant was convicted of all offenses on the same date. The court ruled that defendant would be sentenced as a Tier III, lifetime offender under the SORNA provision which finds that if the defendant “has two or more convictions of offenses listed as Tier I or Tier II sexual offenses,” the defendant becomes a Tier III offender and must register for life. The court did allow the defendant to preserve the issue for appeal.

The defendant was sentenced and filed a notice of appeal. While the appeal was pending, the Pennsylvania Supreme Court decided the case of A.S. v. Pennsylvania State Police, holding that the previously mentioned language dealing with multiple convictions requires separate convictions. Thus, in A.S. (and the companion case of Commonwealth v. Lutz-Morrison­), the Supreme Court held that a defendant who had been convicted of multiple counts of Tier I possession of child pornography at the same time must only register for fifteen years as a Tier I offender.  

In Leonard, the Superior Court held that the same rule applies for when multiple Tier II and Tier I offenses are combined as part of the same case and are part of an ongoing course of conduct. Therefore, the Court remanded the case for re-sentencing with an order that the trial court require the defendant to register only as a Tier II offender. The Court rejected the prosecution’s argument that the defendant improperly challenged his registration by filing a notice of appeal directly to the Pennsylvania Superior Court. The prosecution argued that the defendant should have challenged his registration classification by filing suit against the Pennsylvania State Police in the Commonwealth Court as the Commonwealth Court has jurisdiction over lawsuits against state agencies. The Superior Court rejected this argument, finding that because the defendant was still in the process of serving his sentence and had filed a timely direct appeal, the Superior Court could review the issue of whether the trial court had imposed a legal sentence. Accordingly, the Superior Court remanded the case so that the trial court could re-sentence the defendant as a Tier II offender.

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If you are facing criminal charges or believe you may have been improperly required to register under Megan’s Law, we can help. We offer a free criminal defense strategy session to any potential client who is under investigation or facing active criminal charges. We also offer a $100 Megan's Law consultation if you believe that you may be improperly classified under SORNA. Call 267-225-2545 to speak with one of our award-winning Philadelphia Criminal Defense Lawyers.