UT: Prosecutor’s trial comment on def’s refusal to give passcode to phone violated 5A

Defendant refused to reveal the passcode to his cell phone, and the police never got into it. He was charged with kidnapping, and he claimed that there was no kidnapping and that she consented to come with him. At trial, the state argued that his refusal to consent was admissible, and it came in. The Supreme Court reversed the conviction, affirming the Court of Appeals. “Providing a passcode is testimonial because it is a communication that discloses information from the person’s mind. We then move to the State’s other arguments. We conclude that the foregone conclusion exception does not apply here. That exception arises in cases involving compelled acts of producing evidence to determine whether the act has any testimonial value because the act implicitly conveys information. Such an analysis is not necessary in a case involving a verbal statement that explicitly provides information.” State v. Valdez, 2023 UT 26, 2023 Utah LEXIS 138 (Dec. 14, 2023), aff’g State v. Valdez, 2021 UT App 13, 482 P.3d 861 (2021).

And commenting on it: Volokh Conspiracy: Is Compelled Decryption Heading to the Supreme Court? by Orin Kerr (“Unlocking phones may reach SCOTUS, but there’s a potential catch.” “One of the major issues in the law of digital evidence investigations is how the Fifth Amendment privilege against self-incrimination applies to unlocking phones. As I wrote here at the Volokh Conspiracy back in 2020, the lower court caselaw is a total mess. No one can say what the law is. And I’ve been waiting for a case to come down that might be a good candidate for U.S. Supreme Court review to clear up the mess.”)

See also At Customs, defendant’s phone was seized by CBP officers and copied after they made him tell them the password. Defendant argues the “foregone conclusion” prong of the Fifth Amendment that his knowledge of the password links him to the phone. Denied. He used the phone in the presence of CBP, so they already know whose it is. United States v. Smith, 2023 U.S. Dist. LEXIS 221870 (S.D.N.Y. Dec. 13, 2023).*