AR: Isolated comment at trial from police witness defendant wouldn’t give up cell phone password didn’t require reversal; jury admonished on right not to

An isolated trial comment from a witness that the officer couldn’t access a cell phone without the password wasn’t prejudicial. Also, the parties agreed that an admonition that defendant had a constitutional right to not give it was given. Lewis v. State, 2019 Ark. App. 43, 2019 Ark. App. LEXIS 54 (Jan. 30, 2019):

In this case, the prosecution did not comment on appellant’s failure to turn over his iPhone passcode in either its opening statement or its closing argument. The only mention of this failure was by a witness, Detective Monson, in response to a question about his process in extracting information from a phone. He said that there was a small chance that he could recover deleted messages from a phone but “not without giving up the encryption password.” After defense counsel moved to strike the statement, the court offered-and defense counsel accepted the offer-to admonish the jury that appellant had a constitutional right not to provide the passcode to his phone. This incident was in no way an impeachment of some explanation appellant had offered at trial as in Doyle, and it was not a manifest intent to comment on appellant’s silence. Rather, it was an inadvertent comment by a witness in explaining to the jury his work to extract information from appellant’s phone. Moreover, following the court’s admonishment to the jury, the prosecutor did not dwell on the reference or elicit any further comment about it. We hold this was not an improper comment on appellant’s silence contemplated by Doyle, and the court’s refusal to grant appellant’s motion to strike the comment was not reversible error.

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