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Comment by evgen | Hacker News Reader

Claim the EFF, but headline statement is not an assertion that has held up in court.

Seems to have held up in the Utah court of appeals:

“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.”

In that text, “prevents the state from commenting on his silence” is a link to https://supreme.justia.com/cases/federal/us/380/609/

Fair point. It has held up in a single state court of appeals, so I was definitely wrong about this being without substance on appeal, but the jurisdiction of the ruling is quite small and I am unaware of anything federal backing the claims being made.

See e.g. p. 10ff. of the amicus brief where quite a lot of federal precedent is cited.

I’m not sure this is correct. A state court of appeals made this ruling, but it wasn’t a matter of state law (the “law” is the US constitution and the precedent was a US Supreme Court case); I believe the “jurisdiction” (e.g. where this ruling establishes precedent as far as how the 5th amendment applies in this situation) is the entire US (unless a higher court rules otherwise).

Not a lawyer but I think a future defense attorney with a client in a similar situation in a another state would reference this ruling and try to convince a judge that their client’s situation was similar enough to invoke that ruling, whereas a prosecutor would be making the case that it was different enough that it did not apply (vs saying that it was a different jurisdiction and did not apply).

So far it has held up in the court of appeals, but there's another hearing upcoming.

Note that a defendant is in a much stronger position if they have maintained complete silence even before the password is requested - you can't just clam up halfway through a conversation.

> you can't just clam up halfway through a conversation.

You certainly can.

> you can't just clam up halfway through a conversation

Why?

I’m not the person you’re replying to but I think they’re getting at the state/a jury’s ability to draw inferences from when and in response to which question you decided to invoke your fifth amendment right to remain silent.

I'm not a lawyer, but I've heard that the 5th Amendment is an "all or nothing" thing - that a judge might say you answered all these other questions, so you can't pick and choose which ones you don't want to answer, so now the court is compelling you to answer.

No. The Miranda warning explicitly states:

> If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.

If the questioning goes from "what's your name, what's your job, where do you live" to "why did you murder so-and-so", you're allowed to invoke the Fifth there, even if you answered the innocuous questions earlier.

At trial, you can't start testifying on your own defense and invoke the Fifth part way through, but you can during police interrogation. https://www.findlaw.com/criminal/criminal-rights/fifth-amend...

"Once the defendant takes the witness stand, this particular Fifth Amendment right is considered waived throughout the trial."

(Witnesses have full Fifth Amendment protections while testifying, oddly enough. The above is specific to a) trial and b) the defendant)

You most certainly can clam up halfway through a conversation, and the fact that you did cannot be used against you in a criminal trial. It's a common (but not mandatory) part of the Miranda warning that a person being questioned in custody can stop answering questions at any time.

https://en.wikipedia.org/wiki/Miranda_warning

That has not always worked out. For instance, "clamming up" in the midst of questioning, but not verbally invoking your right to remain silent has been used against a defendant. The entire process is a minefield which is only avoided by immediately stating your rights, and not cooperating with the police at all. Unfortunately, in the USA, treat the police as a third-world country.

This isn't how the rulings involving phone passwords has worked out. The supreme court has not ruled on this question so each state has its own interpretation of the fifth amendment here. Some states have found that the fifth amendment provides no protection for passwords, others have found that the fifth amendment does protect passwords, but only if you have refused to give any evidence from the locked device. Once you give some evidence from the device I believe every state says you can be forced to give up your password.

IIRC under the 5th amendment, you can indeed clam up at any time you so choose,except in court under oath. And even then it's not cut and dry.

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