In the Matter of a Grand Jury Investigation, 88 N.E.3d 1178

Grand jury investigation into assault and battery on two children sought order compelling petitioner to enter his iPhone PIN so a previously issued search warrant could be executed.
Commonwealth filed ex parte materials (including grand jury transcript and affidavit) under seal; petitioner and his counsel were served with the motion and proposed order but not the sealed submissions.
Superior Court heard argument with petitioner’s counsel present, issued an order detailing how petitioner would enter the PIN and barred use of the act of production in any subsequent prosecution.
Petitioner refused to comply; the Commonwealth filed for civil contempt, and the judge adjudicated petitioner in contempt and ordered incarceration until he complied; execution was stayed pending appeal.
On appeal, the court considered whether requiring entry of the PIN violated the Fifth Amendment, whether petitioner was entitled to review sealed grand jury materials or thereby denied effective assistance of counsel, and whether contempt finding was proper.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether compelling petitioner to enter iPhone PIN violates Fifth Amendment privilege	Entering PIN is testimonial and would incriminate petitioner	Act of entering PIN is a foregone conclusion given Commonwealth's knowledge; not testimonial	Court: No Fifth Amendment violation; foregone conclusion exception applies
Whether petitioner was entitled to the sealed grand jury/ex parte submissions	Petitioner argued he should review sealed materials to contest the motion and claim of foregone conclusion	Commonwealth: grand jury materials are secret preindictment and judge may review ex parte	Court: No right of access preindictment; judge properly reviewed materials in camera
Whether denial of access to sealed materials denied effective assistance of counsel	Petitioner contended counsel could not effectively litigate without the sealed submissions	Commonwealth: counsel’s statutory role in grand jury matters is limited; petitioner had counsel and participation in hearing	Court: No ineffective assistance; counsel acted within permitted scope and achieved a stay pending appeal
Whether contempt adjudication was improper	Petitioner argued inability-to-comply and privilege barred contempt	Commonwealth: petitioner disobeyed a clear order and bore burden to show inability to comply	Court: Contempt appropriate; petitioner made no showing of inability to comply and burden is not barred by privilege

Hoffman v. United States, 341 U.S. 479 (testimonial statements protected by Fifth Amendment)
Couch v. United States, 409 U.S. 322 (scope of testimonial protections)
Fisher v. United States, 425 U.S. 391 (foregone conclusion doctrine for act-of-production cases)
United States v. Hubbell, 530 U.S. 27 (limits on act-of-production immunity)
United States v. Fricosu, 841 F. Supp. 2d 1232 (requiring decryption where government knew existence and location of files)
Commonwealth v. Gelfgatt, 468 Mass. 512 (application of foregone conclusion in Massachusetts for compelled decryption)
Pixley v. Commonwealth, 453 Mass. 827 (appellate review of in camera grand jury materials)
WBZ-TV4 v. District Attorney for the Suffolk Dist., 408 Mass. 595 (secrecy of grand jury proceedings preindictment)
Commonwealth v. Griffin, 404 Mass. 372 (statutory role of counsel with a client before the grand jury)
Birchall, petitioner, 454 Mass. 837 (civil contempt requires clear disobedience of clear order)
Mahoney v. Commonwealth, 415 Mass. 278 (defendant bears burden to prove inability to comply with contempt order)
Matter of a Care & Protection Summons, 437 Mass. 224 (burden of production in contempt context not barred by self-incrimination)
Eldim, Inc. v. Mullen, 47 Mass. App. Ct. 125 (standards for civil contempt)