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In his article, The 'Realness' Key to Compelled Passcode Production, published in the Journal of Criminal Law & Criminology (Vol. 115, 2025), Pace Haub Law Visiting Assistant Professor Gabriel Pell offers a novel framework for applying the Fifth Amendment�鶹��ý�s Foregone Conclusion exception to compelled passcode entry. At the heart of the article is a key question: when the government forces someone to unlock a phone, are they permissibly being compelled to produce real evidence that exists outside of their mind�鶹��ý�or are they revealing the contents of their mind in violation of their privilege against self-incrimination?

Drawing on the �鶹��ý�act of production�鶹��ý� doctrine, Professor Pell argues that where the average user experiences their passcode as something that exists outside of their mind, courts can conceptualize the passcode stored within a given device or the unlocked device itself as the 'real' evidence produced through compelled passcode entry. This conceptual shift can resolve a national split in authority among courts while protecting targets from compelled revelation of mere memorized information.

�鶹��ý�[T]he government need not demonstrate pre-production knowledge of the contents of a locked device to satisfy the Foregone Conclusion exception,�鶹��ý� Professor Pell writes, challenging assumptions some courts have made about the application of this paper-based doctrine to passcodes in the digital era.