Micro-Seminar: Is Silence Sufficient?: Pleading the Fifth in the Age of Biometric Security PART TWO

Micro-Seminars have two parts. Attendance to both parts is required. Registering for the PART ONE session will automatically enroll you in the PART TWO session on Friday.

Part 1: Thursday, August 22, 2024 from 3:00 – 4:30 pm (PST)
Part 2: Friday, August 23, 2024 from 10:00 – 11:30 am (PST)

Can law enforcement compel you to unlock your phone using Face ID without your consent? The Fifth Amendment of the United States Constitution says that: “No person . . . shall be compelled in any criminal case to be a witness against himself . . .” When you hear about someone “pleading the Fifth,” this is what they mean. U.S. citizens don’t have to provide testimony that they think could incriminate them. Courts have recently struggled in applying this principle to situations when police have a warrant for a person’s phone but can’t access it without a passcode or biometrics like a fingerprint or face. Can the owner of that phone be compelled to unlock the contents within?

On day one, we’ll discuss Schmerber v. California, a 1966 case where the U.S. Supreme Court found that the involuntary withdrawal of blood in a DUI case did not violate the defendant’s Fifth Amendment privilege, and Fisher v. United States, a 1976 U.S. Supreme Court case that held that a defendant could be compelled to produce potentially incriminating tax documents.

On day two, we’ll discuss two state supreme courts reaching seemingly opposing results: in 2018, the Minnesota Supreme Court in State v. Diamond held that the Fifth Amendment did not prevent a defendant from being compelled to provide a fingerprint to unlock a seized cellphone. But in 2020, in Seo v. Indiana, the Indiana Supreme Court held that a defendant could not be compelled to give the password to her locked cell phone without running afoul of the Fifth Amendment. We’ll discuss the above cases in a Socratic-style dialogue to try to make sense of how the Supreme Court’s prior rulings have resulted in such wildly different interpretations.

Pre-law students, debaters and anyone interested in civil rights is encouraged to join.

Lead By: Professor Antonio Elefano

In 2024, Antonio Elefano was awarded the USC Associates Award for Excellence in Teaching, the highest honor for teaching given at USC. That same year, he received his second USC Mentoring Award for Mentoring Undergraduates (his first was in 2019). Antonio Elefano joined USC's Writing faculty in the fall of 2014. Before coming to USC, he was a corporate litigator in New York City and a writing fellow/visiting assistant professor at the University of Houston.

A graduate of Yale Law School and the author of Legal Writing for the Undergraduate from Wolters Kluwer/Aspen, he is the Writing Program's legal writing specialist, teaching WRIT 340: Moot Court, WRIT 320: Competitive Moot Court (focused on oral argumentation), WRIT 340: Advanced Writing for Pre-Law Students (which he teaches as an Introduction to Legal Writing) and WRIT 440: Advanced Legal Writing. He is the faculty advisor for Southern California Moot Court (which in 2024 was named the top school in the country in appellate brief writing), Phi Alpha Delta (USC's pre-law fraternity), and the Survivor Support Community at USC. Elefano is also a fiction writer whose stories have been published in The Los Angeles Review, 236 and The Journal. In August 2014, his story "Italy" was one of Buzzfeed's "29 Short Stories You Need to Read in Your Twenties."

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