Police Can't Demand You Reveal Your Phone Passcode and Then Tell a Jury You Refused

EFF: The Utah Supreme Court is the latest stop in EFF's roving campaign to establish your Fifth Amendment right to refuse to provide your password to law enforcement. Yesterday, along with the ACLU, we filed an amicus brief in State v. Valdez, arguing that the constitutional privilege against self-incrimination prevents the police from forcing suspects to reveal the contents of their minds. That includes revealing a memorized passcode or directly entering the passcode to unlock a device. In Valdez, the defendant was charged with kidnapping his ex-girlfriend after arranging a meeting under false pretenses. During his arrest, police found a cell phone in Valdez's pocket that they wanted to search for evidence that he set up the meeting, but Valdez refused to tell them the passcode. Unlike many other cases raising these issues, however, the police didn't bother seeking a court order to compel Valdez to reveal his passcode. Instead, during trial, the prosecution offered testimony and argument about his refusal. The defense argued that this violated the defendant's Fifth Amendment right to remain silent, which also prevents the state from commenting on his silence. The court of appeals agreed, and now the state has appealed to the Utah Supreme Court.

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