State compulsion of smartphone security features and the privilege against self-incrimination

by | Nov 11, 2023 | SACJ, SACJ V36 I2 2023

State compulsion of smartphone security features and the privilege against self-incrimination

Author: Constantine Theophilopoulos

ISSN: 1996-2118
Affiliations: BSc LLB (Wits) LLM LLD (SA); Associate Professor, Interim Director and supervising attorney, Law Clinic, University of the Witwatersrand
Source: South African Journal of Criminal Justice, Volume 36 Issue 2, p. 282 – 303
https://doi.org/10.47348/SACJ/v36/i2a5

Abstract

There is currently a lacuna in statutory and case law about the legal nexus between smartphone technology in the form of password/code or biometric-locked smartphone security features and the privilege against self-incrimination. This paper examines whether a recipient of a cyber-warrant, subpoena, or other compelling order, may invoke the privilege against self-incrimination in the face of a state order compelling the production of a security feature in order to unlock a smartphone and forensically access stored incriminating data files as admissible relevant evidence at trial. This paper examines the legal nexus by critical reference to relevant South African legislation, comparative international law, the Fifth Amendment privilege, and the foregone conclusion doctrine as described by the USA Supreme Court in Fisher v United States, Hubbell v United States and other federal courts.

DNA phenotyping: A possible aid in criminal investigation

by | Jul 16, 2023 | SACJ, SACJ V36 I1 2023

DNA phenotyping: A possible aid in criminal investigation

Authors: Lirieka Meintjes-van der Walt and Adebola Olaborede

ISSN: 1996-2118
Affiliations: B Juris LLB (UPE) LLM (Rhodes) DJuris (Leiden); Adjunct Professor of Law and Leader of the Law, Science and Justice Research Niche Area, University of Fort Hare; LLB (Nigeria) LLM (Stellenbosch) LLD (UFH); Time on Task Lecturer, Faculty of Law, University of Fort Hare
Source: South African Journal of Criminal Justice, Volume 36 Issue 1, p. 1 – 23
https://doi.org/10.47348/SACJ/v36/i1a1

Abstract

This article examines DNA phenotyping in general and highlights international perspectives regarding the use of this technique. The article interrogates the genetic basis of predicting externally visible characteristics, the potential value of the technique, and the pitfalls regarding its use. Despite the ethical and legal concerns and debates concerning DNA phenotyping, the potential value of this technique should not be underestimated. In the context of the high number of serious crimes such as rape and murder that remain unsolved in South Africa, the responsible and scientific application of DNA phenotyping might prove to be an effective additional tool in criminal investigation.