Wake up, new reminder to not talk to police just dropped! That’s information you would expect all lawyers to know, but with the once competent Rudy Giuliani committing defamation at his own defamation trial, I figure everyone could benefit from a refresher. Today it comes from the Utah Supreme Court — they passed down a decision anchoring the right to not give the police your phone password in the Fifth Amendment. From the ABA Journal:
A suspect had a Fifth Amendment right to refuse to give police his cellphone passcode, the Utah Supreme Court has ruled.
In a Dec. 14 opinion citing that right, the state supreme court reversed the conviction of Alfonso Valdez for kidnapping and assaulting his ex-girlfriend. Prosecutors had elicited testimony at trial about Valdez’s refusal to provide his passcode and told jurors in closing arguments that the refusal undermined one of his defenses.
The Utah Supreme Court said prosecutors violated Valdez’s Fifth Amendment right against self-incrimination when they referred to his refusal, and the error was not harmless.
The stench from the prosecutor’s closing should reek worse than the Vikings’ record this season. Refusal to undermine one of your rights isn’t proof alone that you’ve done something wrong. It’s reached the status of a joke-tier amendment, but imagine how ridiculous it would be if a refusal to quarter soldiers were met with similar suspicions?
It’s also noteworthy that Utah’s Supreme Court went so far as to say that the error wasn’t harmless. Prosecutors have a reputation of being very discretionary — not only with the cases they prosecute, but also which rights of the people they’re trying to imprison need to be respected. A study out of Ohio found that with far more regularity that the Constitution allows (read: none), prosecutors would deliberately violate defendants’ civil rights by not disclosing Brady evidence and the like, often facing no consequences, even for repeated misbehavior. Oh, and the worst part? Ohio probably isn’t some outlier. NPR has coverage:
Former prosecutor Bennett Gershman, who now teaches at Pace University’s School of Law in New York, called the pattern of prosecutors who repeatedly act improperly in cases in Ohio a “microcosm” of the criminal justice system in states across the country.
In Tennessee, the Shelby County prosecutor was rebuked at least twice by higher courts in several murder cases for withholding key evidence or improper opening remarks, records show. Two of the convictions were overturned, and a new trial was ordered in one case. Voters ousted her last year.
…
[I]n Monroe County, N.Y., which includes Rochester, the courts reprimanded a prosecutor in three sex crime cases for misrepresenting evidence and deals with jailhouse snitches, and for trying to slip inadmissible evidence into the record by asking the defendant to read it, according to court records. She is now a judge in a nearby county.
Remember, the proper answer to “If you’ve done nothing wrong you have nothing to worry about” isn’t “because you might do something wrong with my information,” but “Privacy is an inherent human right, and a requirement for maintaining the human condition with dignity and respect.”
Suspect has Fifth Amendment right to refuse police demand to disclose cellphone passcode, top state court rules [ABA Journal]
Ohio Prosecutors Broke Rules To Win Convictions And Got Away With It [NPR]
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.