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The protections of the Fifth Amendment are running up against technology and often coming out on the losing end. Court rulings have been anything but consistent to this point. So far it appears password protection beats fingerprints, but not by much.

It all comes down to the individual court. Some view passwords as possibly testimonial in and of themselves, and side with defendants. Others view passwords as something standing in the way of compelled evidence production and punish holdouts with contempt of court charges.

That's what's happening to a Florida man suspected of child abuse. He claims he's given law enforcement his phone's password already, but prosecutors claim the password failed to unlock his phone. They believe his phone holds evidence of the physical abuse alleged -- a claim that seems a bit less believable than those made about child porn viewers and drug dealers.

The court, however, has sided with prosecutors.

A Hollywood man must serve 180 days in jail for refusing to give up his iPhone password to police, a Broward judge ruled Tuesday the latest salvo in intensifying legal battles over law-enforcement access to smart phones.

Christopher Wheeler, 41, was taken into custody in a Broward Circuit Court, insisting he had already provided the pass code to police investigating him for child abuse, although the number did not work.

All that can be said for certain is prosecutors still don't have an unlocked phone. As prosecutors and this judge see it, the only explanation is that Wheeler lied. That earns him six months of jail time. Maybe Wheeler should have said he couldn't remember.

As Wheeler was jailed Tuesday, the same issue was unfolding in Miami-Dade for a man accused of extorting a social-media celebrity over stolen sex videos.

That man, Wesley Victor, and his girlfriend had been ordered by a judge to produce a pass code to phones suspected of containing text messages showing their collusion in the extortion plot.

Victor claimed he didn't remember the number. He prevailed.

This would be the same judge who determined turning over a password had no Fifth Amendment implications. However, the court found it plausible the defendant might not be able to remember the password to a phone he'd last used over ten months ago. But the ruling doesn't necessarily say the defendant is telling the truth. It only goes so far as saying it's almost impossible to prove he's lying. Given the gap between the phone's seizure and the demand for a password, it's a plausible claim.

His co-defendant made no such claim. Like Wheeler above, Victor's girlfriend handed over a password but it didn't work. The court has asked her to explain why. Given the judge's earlier Fifth Amendment determination, it's safe to assume Hencha Voigt will be facing jail time if the explanation isn't to the judge's liking.

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Man To Spend 180 Days In Jail For Turning Over Non-Working Password - Techdirt

The U.S. Constitution guarantees the inalienable rights of citizens.

"You have the right to remain silent, and anything you say can and will be used against you in a court of law."

Those familiar words, part of an accused's Miranda rights (and a staple of police dramas), came into play in a grand fashion this week as Bridget Anne Kelly, a former aide to embattled New Jersey Gov. Chris Christie, chose to remain silent about her role in the now-infamous lane closures on the George Washington Bridge in September 2013.

In refusing to testify, Kelly exercised her Fifth Amendment rights, one of the original provisions of the U.S. Constitution's Bill of Rights. Though it's been part of U.S. law since 1791, many Americans are still confused when a defendant decides to "plead the Fifth." [8 Supreme Court Decisions that Changed US Families]

Innocent until proven guilty

The Fifth Amendment contains several familiar protections against government intrusion, including the clause against double jeopardy (trying a defendant more than once for the same offense), the right to due process of law (including a fair trial) and the right to just compensation when the government takes private property for public use.

The clause regarding self-incrimination was developed to prevent anyone from being forced to testify against themselves, leaving the burden of proving that a person has committed a crime to the government. Thus, the Fifth Amendment enshrines the maxim that someone is "innocent until proven guilty."

John Lilburne, an obstreperous political firebrand who lived in 17th-century England, is sometimes regarded as the godfather of the right to remain silent. When brought before the Star Chamber court for the crime of circulating Puritan pamphlets, Lilburne refused to take an oath that he would answer every question asked of him.

For his intransigence, Lilburne was publicly whipped, dragged through the streets behind an ox cart, gagged and throw in prison, where he continued to campaign for what he called the "freeborn rights" of all people the precursor to what are now called civil rights.

The Miranda Decision

It's been argued that James Madison, who would eventually serve as the fourth U.S. president, had the experience of Lilburne and other English law-enforcement practices including torture and forced confessions in mind when he penned the original words of the Fifth Amendment: "No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Madison took care to include the right to avoid self-incrimination in the Fifth Amendment, in part because several of the states did not include that protection in their original state constitutions.

This right was extended to U.S. citizens in a fundamental manner in the Supreme Court's 1966 Miranda v. Arizona decision. In that landmark ruling, the court found that the Fifth and Sixth Amendment rights of Ernesto Arturo Miranda had been violated after he was arrested and tried for rape and kidnapping.

While the Fifth Amendment protects an arrested person from being compelled to be a witness against himself (self-incrimination), the Sixth Amendment guarantees that a person will have access to legal counsel for his or her defense. It was deemed that Miranda was denied these rights.

Limits to the Fifth

Though the Fifth Amendment offers broad protections, there are limits to its use. An important exception was added in 1984, when the U.S. Supreme Court found, in New York v. Quarles, that if public safety is at immediate risk, a suspect's statements are admissible in court, even if his or her Miranda rights have not been explained.

And in an important child-abuse case, Baltimore City Department of Social Services v. Jacqueline Bouknight, the U.S. Supreme Court ruled in 1990 that a parent with limited custody rights cannot refuse to tell a judge the child's whereabouts. Protections against self-incrimination did not apply because of the immediate risk to the safety of the child.

Follow Marc Lallanilla on Twitter and Google+. Follow us @livescience, Facebook & Google+. Original article on Live Science.

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What Is the Fifth Amendment? | Plead the Fifth

Miami Herald

US magistrate OK's video surveillance of Overtown store Miami Herald Otazo-Reyes said the ordered surveillance does not violate Bradley's right to privacy, and that her claim under the Fifth Amendment's Takings Clause is not ripe for review by a court because she hasn't been denied all reasonable use of her property.

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US magistrate OK's video surveillance of Overtown store - Miami Herald

PORTSMOUTH

A prosecutor violated the rules of evidence and caused a mistrial when she asked a murder suspect Thursdaywhether he had told police the man he killed tried to rob him.

Deputy Commonwealths Attorney Teressa Murrell knew Carl William Holder had invoked his Fifth Amendment right not to speak to police so she should not have questioned him in front of the jury about his choice to remain silent, a judge ruled.

"Nothing was done intentionally, but it was done," Circuit Judge Kenneth Melvin said as he dismissed the jury on the fourth day of Holder's trial.

Prosecutors immediately announced plans to retry Holder in the August 2015 death of 40-year-old Elvin Elliott near the Farm Fresh at 4000 Victory Blvd.

A new trial date will be picked early next month.Holder will remain incarcerated until at least that time.

Outside the courtroom, Elliott's father said he was satisfied with how prosecutors were handling the case.

"I've got great confidence in the commonwealth's attorney," Eddie Elliott said.

Neither Commonwealth's Attorney Stephanie Morales nor a spokeswoman for her office immediately returned requests for comment.

Holder, 34, is charged with one count of first-degree murder. Prosecutors say he bought a kitchen knife at the Farm Fresh, walked outside and cut Elliott's hand during an argument. Murrell said Holder then chased Elliott into a Zero's sub shop and fatally stabbed him in the abdomen.

Holder took the stand Thursday morning in his own defense. He said Elliott approached him at a bus stop and when Holder refused to give him some of an alcoholic drink he was making demanded he empty his pockets. To appease Elliott, Holder offered to buy him a beer.

Holder said he walked into the Farm Fresh with Elliott and started to yell for help. No one responded, though. And when he asked customer service to call 911, a woman asked whether he was serious, Holder said.

That, Holder said, was when he decided to buy the knife.

Holder said he walked outside and called two friends to see whether they could pick him up, but neither were available. He said he then started walking to a different bus stop, but Elliott, who had a blood-alcohol content of .184, confronted him again in search of the free beer he was promised.

Holder said he cut Elliott's hand when the man moved toward him. He said he then chased Elliott down because he noticed Elliott's backpack was missing. He said he was afraid Elliott was going to get a weapon or find a friend.

On cross-examination, Murrell tried to poke holes in Holder's story. He admitted to leaving his drink behind at the bus stop when he went into the grocery store and to never using his cellphone to call police.

Holder maintained he feared for his safety, though, prompting Murrell to ask if he had told police someone had tried to rob him.

Before Defense Attorney Andrew Sacks could object, Holder responded that he invoked his Fifth Amendment right to remain silent.

Sacks then moved for the mistrial.

While arguing against the request, Murrell said she did not intend for Holder to tell the jury about his decision not to grant detectives an interview. She said she was referring to what happened when the first officers arrived.

Melvin countered that she didn't say that when she asked her question, and he ruled the trial could not go forward.

In an interview Thursday, Sacks said he didn't want a mistrial in Holder's case. He said he believed the trial had been going well for his client and argued that several government witnesses appeared to offer contradictory versions of events.

But, he said, he didn't think he could gamble with his client's freedom and not request a mistrial when he believed one was legally appropriate.

"I do not have a crystal ball," he said. "There is no way to know how the jury would react to that information."

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Portsmouth prosecutor's question leads to mistrial in deadly stabbing near Farm Fresh - Virginian-Pilot

This article first appeared on Reason.com.

A circuit court judge in Broward County, Florida, sent 41-year-old Christopher Wheeler to jail for 180 days on May 30 because he wouldn't give police his iPhone password.

Wheeler, who is charged with aggravated child abuse, insisted that he did give them his password. But the cops say the password he provided doesn't work, and that Wheeler therefore hasn't complied with their request. This, the judge decided, put him in contempt of court.

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Meanwhile, another Florida circuit court judgethis one in Miami-Dade Countyissued a rather different ruling in the case of a couple accused of extorting a social media celebrity over a sex tape. They would not be held in contempt of court for failing to share a phone's password, the judge decided, because there's no way to prove that they couldn't remember their password.

These are just the latest episodes in a broader debate about how Fifth Amendment rights apply to a relatively new technology. Do passwords count as "testimonial evidence," where protections against self-incrimination apply? Or is it more like a field sobriety test or a DNA swab?

Police in both cases were following a precedent set in Sarasota County last year, when the sheriff's department wanted to compel a man accused of video voyeurism to give them his iPhone passcode. A trial judge had ruled that this would violate the alleged voyeur's Fifth Amendment rights, declaring that the man could not be forced to surrender "the contents of his mind."

A person points to the apps on her smartphone, November 1, 2016. ANDREW CABALLERO-REYNOLDS/AFP/Getty

But a state appeals court rejected that reasoning, citing the 1988 Supreme Court decision Doe vs. U.S. That case centered around whether the feds could force a suspect to sign consent forms permitting foreign banks to produce any account records that he may have.

In Doe , the justices ruled that the government did have that power, since the forms did not require the defendant to confirm or deny the presence of the records. The Florida court decided that the iPhone case was analogous: The password to the phone and the contents of the phone were separate subjects.

The Sarasota case is now headed to the Florida Supreme Court. Wheeler is appealing his case too, and is expected to be allowed to post bond.

Ed Krayewski is an associate editor at Reason.com.

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Is It Unlawful to Deny the Cops Your Phone Password? - Newsweek