The final argument of the 41st annual Orison S. Marden Moot Court Competition on April 8 put four of NYU Law’s best student oralists before a distinguished panel of judges to argue a fictitious Supreme Court case. The arguments centered on the "routine booking" exception to the Miranda rule and on whether the Fifth Amendment right against self-incrimination protects a suspect from compulsory disclosure of encrypted data on an electronic device.

With Judge Raymond Kethledge of the U.S. Court of Appeals for the Sixth Circuit, Judge Albert Diaz ’88 of the U.S. Court of Appeals for the Fourth Circuit, and Judge Kimba Wood of the U.S. District Court for the Southern District of New York presiding, Yotam Barkai ’13 argued that the rights of petitioner George Janus were violated when an officer repeatedly asked him before the reading of his Miranda rights whether a cell phone he had been carrying at the time of his arrest was his own property. Co-counsel Harold Williford ’13 tackled the self-incrimination question, asserting that compelling Janus to comply with a government subpoena to provide the password for an encrypted data folder on his laptop would be a tacit disclosure that those files, which might implicate him in illegal acts, belonged to him.

Representing the respondent, Theresa Troupson ’14 argued that the officer had asked about the ownership of the phone for administrative purposes, not to elicit evidence of potential guilt, and thus the questions fell within Miranda's routine booking exception. Zoey Orol ’13 then asserted that the Fifth Amendment did not protect the contents of the appellant’s business records, the material believed to be encrypted on the laptop. The judges subsequently questioned her about the amount of certainty required by the government to determine that it was a "foregone conclusion" that the encrypted data folder did, in fact, contain the incriminating evidence the government sought.

Judges and students at Marden Moot final argumentsIn an exchange with Kethledge, who suggested that the government was relying almost entirely on a single witness with a “one-for-one” record in terms of reliability, Orol replied, “Respectfully, Your Honor, it’s not one-for-one.” She swiftly enumerated several ways in which the witness’s information had proved to be accurate, prompting Kethledge to say, “I retract the one-for-one,” to general laughter. Orol concluded that quashing the government’s subpoena would create a Fifth Amendment right to privacy: “It would be to tell anyone who has anything he wants to hide from a potential government investigation, ‘Put it under digital lock and key. We can’t get it, we can’t ask for it, and we’ll consider that as part of your constitutional rights.’”

While the judges deliberated, Professor Samuel Rascoff announced the Moot Court Board’s year-end awards, including the Albert Podell ’76 Advocacy Awards, which went to Julie Simeone ’14 (Oral Advocacy Award), Barkai and Williford (Brief Writing Award), and Daniel Eisenberg ’14 (Moot Court Advocacy Award). Barkai also won the Marden Brief Writing Award.

The judges returned from their recess and named Orol as Best Oralist, to thunderous applause. Diaz reflected that “‘argument’ is a bit of a misnomer. If it’s done well it really should be a conversation, which is what we had here today. The court comes into this with questions, and the best thing that an advocate can do is respond to those questions. You all did a fine job of that.”

Kethledge praised both the oralists and the problem, created by Tracy Huang ’14 and Mark Young ’14, calling the latter “something that could happen and something that I think we may see in our day jobs.” He added a word of advice: “Particularly in hard cases, when you see that the bench is concerned or struggling with something, you really have to try to recognize that concern, even if it’s one that’s squarely against your position, and try to give the court an answer that’s going to give them comfort that the rule you’re proposing isn’t going to prove problematic in practice.”

Wood deemed the proceedings the best moot court she had ever judged. “You were terrific in terms of listening to us, answering our questions, having a conversational tone of voice so that we wanted to listen to what you had to say, and turning on a dime if we weren’t interested in what you were saying and we changed the subject," she said. "You were right there with record references and good arguments. I think you all have very bright futures as oral advocates.”

Posted on April 19, 2013