Last week, the Utah Supreme Court ruled that prosecutors violated a defendant's Fifth Amendment privilege against self incrimination when they presented testimony about his refusal to give police the passcode to his cell phone.
This closely tracks arguments in the amicus brief EFF and the ACLU filed in the case.
The Utah court's opinion is the latest in a thicket of state supreme court opinions dealing with whether law enforcement agents can compel suspects to disclose or enter their passwords.
Last month, EFF supported a petition asking the U.S. Supreme Court to review People v. Sneed, an Illinois Supreme Court opinion that reached a contrary conclusion.
As we explained in that brief, courts around the country are struggling to apply Fifth Amendment case law to the context of compelled disclosure and entry of passcodes.
Many courts, including Utah, have applied a different standard to entering rather than disclosing a passcode.
As we've argued, entering a passcode should be treated as purely testimonial in the same way that nodding or shaking your head in response to a question is.
Prosecutors routinely argue it applies any time the government can show suspects know the passcode to their phones.
Even Supreme Court justices like Antonin Scalia and Clarence Thomas have viewed Fisher as a historical outlier, and it should not be the basis of such a dramatic erosion of Fifth Amendment rights.
Thankfully, the Utah Supreme Court held that the foregone conclusion doctrine had no application in a case involving verbal testimony, but it left open the possibility of a different rule in cases involving compelled entry of a passcode.
Make no mistake, Valdez is a victory for Utahns' right to refuse to participate in their own investigation and prosecution.
We will continue to fight to ensure this right is given its full measure across the country.
This Cyber News was published on www.eff.org. Publication date: Tue, 19 Dec 2023 01:13:04 +0000