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Comment by bryan0 | Hacker News Reader

Am I missing something or is the headline (and most of the HN commentary) missing the point of this ruling? The ruling is not about whether you have the right to refuse to give your passcode (of course you have that right). Rather the ruling is about whether your refusal to give your passcode can be used against you at trial as incriminating evidence (?!)

> A court of appeals reversed the conviction, agreeing "with Valdez that he had a right under the Fifth Amendment to the United States Constitution to refuse to provide his passcode, and that the State violated that right when it used his refusal against him at trial." The Utah Supreme Court affirmed the court of appeals ruling.

This seems like a much more subtle question.

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In terms of the Fifth Amendment, it would seem that those issues are identical. Your right to silence means that your refusal to answer a question, provide interviews, etc, can't be brought up as evidence of your guilt.

Yeah thinking about it more I think this makes sense. It seems like it could be brought up in court though? Just not used as “evidence” again you?

IANAL, but I imagine that would ideally go something like this:

Prosecution: "Mr. Defendant, when the police asked you to unlock your phone, what did you tell them?"

Defense: "Objection, prejudicial and irrelevant. Fifth-Amendment."

Judge: "Objection sustained--move on to the next question."

Yes, but from TFA it sounds like the prosecution did this in closing arguments, when they’re not talking to a witness. Objections are typically not made by opposing sides in closing arguments (though possible). IANAL and don’t know precisely under which circumstances the judge should intervene in closing arguments. But implying that pleading the fifth is evidence of guilt is kinda “Prodecutorial No-Nos 101” and it’s not surprising it was overturned on appeal. What’s more surprising is that the prosecution then went to the state Supreme Court.

It's not "of course", if there is no 5th amendment protection then you can be forced to give the passcode. The New Jersey case the article mentions is about exactly that. [https://law.justia.com/cases/new-jersey/supreme-court/2020/a...]

Ok thanks for the info. That case seems to be about if you can be charged with a crime if you refuse to reveal your password with a search warrant. While the case for this article seems to be about whether refusing to give a passcode when questioned by police can be used in court against you.

My “of course” comment above was about refusing police questioning (Miranda rights). not refusing a search warrant. That does seem like a much trickier issue.

Edit: added the clarification about Miranda rights

The case for this article is also about a search warrant.

> At some point thereafter, the officers obtained a search warrant for the contents of Valdez’s phone. But they were unable to access the phone’s contents because they could not crack his passcode. So a detective approached Valdez, informed him that he had a warrant for the contents of the cell phone, and asked Valdez to provide his passcode. Valdez refused. Without the passcode, the police were never able to unlock the phone to search its contents

Wow I don’t know how I missed that. Thanks.

I agree with your analysis here, but I don't think it's settled case law that you can't be compelled to provide your passcode, that refusing to do so is covered under the 5th amendment.

People have been sent to jail on contempt charges for refusing to provide their password, before even getting to the point of going on trial for whatever they're accused of.

It's two issues. The fifth amendment covers both. The court covers both. That your silence is not incriminating is a natural and mandatory extension of the right to be silent.

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