Thursday, October 25, 2012

Cromwell v. Maryland - Legal SF



Arthur L. CROMWELL vs. State of MARYLAND

No. 2397 Fall 2023 Term

Argued October 12, 2023 - Decided March 10, 2024

Unanimous opinion by Martinez, Chief Justice – This case appears before this Court by writ of certiorari issued to the Court of Appeals of Maryland to review its decision in Cromwell v. State, 567 Md. 889, 107 A.3d 223 (2022).  Cromwell contends his Fifth Amendment privilege against self-incrimination was violated when his own electronically recorded memories were used in court against him...[procedural history omitted].


            Petitioner Arthur Cromwell was the president and head scientist at the Brain-Machine Interface Corporation (“BMIC”) in Rockville, Maryland.  After billions of dollars of federal and state grants and other funds as well as hundreds of man-years from many brilliant persons, BMIC developed a method to “off-load” a person’s memories and, perhaps, very personality onto an extremely complex optical storage device.  This memory could be kept stored and, perhaps, “re-installed” into another, cloned brain.  See New York Times, “Digital Immortality Invented?” at A-1, February 5, 2021.

            As with all breath-taking discoveries, there were questions about costs.  Specifically, allegations arose that BMIC had used test animals from small mammals to chimpanzees in any number of gruesome and fatal experiments which had not been disclosed on grant applications as required by law.  The Maryland Office of Special Prosecutor executed an otherwise valid search warrant on March 23, 2021 and seized, among other items, the complete data storage of Petitioner Cromwell – in essence, a copy of his memories.

            The State of Maryland indicted Petitioner Cromwell on fifty-two counts of felony aggravated animal cruelty, Ann. Code of Md., Crim. Law Art., sec. 10-606 (2020 Ed).  Cromwell moved to exclude his memories from trial, arguing such evidence violated the Fifth Amendment of the Constitution.  His motion was denied; he was convicted by a jury in the Circuit Court for Montgomery County of all counts, and sentenced to five consecutive years incarceration on each count.  All subsequent state appeals were denied, and Cromwell sought relief with this Court.

            Cromwell contends he would not have been convicted absent the use of his memories, as there were no documents remaining in existence concerning the experiments and no other testimony was elicited.  The Attorney General of Maryland, before us in oral argument, concedes Cromwell’s memories were pivotal, but contends there was no error.


            The Fifth Amendment provides, in relevant part, that “No person shall be compelled in any criminal case to be a witness against himself...”  Cromwell argues that when his memories were played as evidence, he was essentially compelled to be a witness.  Maryland contends such evidence was no different than the production of records and diaries which a defendant maintains.

            The restriction against compelled self-incrimination is an ancient one in our law, having been brought by the Puritans to America, in response to their experiences with the oath ex-officio...[historical review omitted].  Cromwell argues use of his own memories is “monstrous,” relying in part on language from one of the most famous cases in existence at the time of the drafting of the Constitution.  See Entwick v. Carrington, 19 Howell’s State Trials 1029 (1765)(Lord Camden, J.)(“Has a secretary of state a right to see all a man’s private [papers]?  This would be monstrous indeed!”).  In Boyd v. United States, 116 U.S. 616 (1886), we rejected use of a diary as a violation of the Fifth Amendment, calling it a person’s “dearest property.”  Are his memories, Cromwell asks, any less valuable?

            The Attorney General replies, quite naturally, that we have successively eliminated or narrowed the privilege in Boyd.  See, e.g, Couch v. United States, 409 U.S. 322 (1973)(no privilege when handed to a third person); Fisher v. United States, 425 U.S. 391 (1976)(producing documents not ‘testimonial’).  Quoting Fisher, the Attorney General argues “[s]everal of Boyd’s express or implicit declarations have not stood the test of time.”  Fisher, supra at 407.  Mechanically applying our post-Boyd cases would seem to make a result clear: using Cromwell’s own memories against him does not violate the Fifth Amendment. 

Such a conclusion seems repugnant to the very idea of a “private inner sanctum of individual feeling and thought” the Fifth Amendment was designed to protect.  Bellis v. United States, 417 U.S. 85, 19 (1974).  These are not gambling sheets.  These are not tax returns.  These are the very memories from Petitioner Cromwell’s brain.  If the privilege against self-incrimination, a bedrock fundamental right, is to mean anything in this “Brave New World” of  “brain copying” and “memory downloads,” than the thoughts and memories of an individual – regardless of whether they are stored in silicon, photons or messy old proteins – must be protected.  Any subsequent language narrowing or eliminating Boyd is hereby repudiated.  It was a violation of the privilege against self-incrimination for Cromwell’s memories to be seized and admitted at trial.


            For the foregoing reasons, the decision of the Court of Appeals of Maryland is REVERSED, the conviction of Petitioner Cromwell is VACATED and the matter is remanded for proceedings consistent with this opinion.

1 comment:

  1. Despite the reversal, Judge Moylan, specially assigned, will continue to cite his own opinion.