Petition for Writ of Certiorari — Utah, Petitioner v. Alfonso Valdez

APPENDIX

TABLE OF APPENDICES

Appendix A

Opinion of the Utah Supreme Court, State v.

Valdez, No. 20210175-SC (Dec. 14, 2023)........... 1a

Appendix B

Opinion of the Utah Court of Appeals, State v.

Valdez, No. 20181015-CA (Feb. 11, 2021) ......... 38a

Appendix C

Excerpt from Transcript of Trial Proceedings,

District Court, Second Judicial District, Weber

County, Utah, State v. Valdez, No. 171901990

(Oct. 19, 2018) .................................................... 79a

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APPENDIX A

2023 WL 8635197

NOTICE: THIS OPINION HAS NOT BEEN

RELEASED

FOR

PUBLICATION

IN

THE

PERMANENT LAW REPORTS. UNTIL RELEASED,

IT IS SUBJECT TO REVISION OR WITHDRAWAL.

Supreme Court of Utah.

STATE of Utah, Petitioner,

v.

Alfonso VALDEZ, Respondent.

No. 20210175

|

Heard March 16, 2022

|

Reheard March 8, 2023

|

Filed December 14, 2023

Synopsis

Background: Defendant was convicted in the Second

District Court, Ogden Department, Joseph M. Bean,

J., of kidnapping, robbery, and aggravated assault.

Defendant appealed. The Court of Appeals, 482 P.3d

861, reversed and remanded. State petitioned for certiorari, which the Supreme Court granted.

Holdings: The Supreme Court, Petersen, J., held

that:

as matter of first impression, verbally providing a cell

phone passcode to law enforcement is a “testimonial

communication” under Fifth Amendment’s privilege

against self-incrimination;

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foregone conclusion exception to Fifth Amendment’s

privilege against self-incrimination did not apply to

defendant’s verbal refusal to provide law enforcement

with cell phone passcode; and

State’s trial commentary regarding defendant’s refusal to provide officers with passcode and officers’ inability to access text messages coordinating defendant’s meeting with victim was not permissible as “fair

response” to argument initiated by defendant.

Court of Appeals affirmed and remanded.

Procedural Posture(s): Appellate Review; Trial or

Guilt Phase Motion or Objection.

On Certiorari to the Utah Court of Appeals, Second

District, Ogden, The Honorable Joseph M. Bean, No.

171901990

Attorneys and Law Firms

Attorneys1: Sean D. Reyes, Att’y Gen., Melissa A. Holyoak, Solic. Gen., Andrew F. Peterson, Thomas B.

Brunker, Deputy Solics. Gen., Christopher A. Bates,

Asst. Solic. Gen., Salt Lake City, John J. Nielsen, Salt

Lake City, Michelle A. Jeffs, Rachel M. Snow, Ogden,

for petitioner

Emily Adams, Freyja Johnson, Bountiful, for respondent

1 Amici Curiae: John M. Mejia, Salt Lake City, for American

Civil Liberties Union of Utah Foundation, Inc., American Civil

Liberties Union Foundation, and Electronic Frontier Foundation; Jeffery C. Corey, John E. Cutler, Jordan E. Westgate, Salt

Lake City, for National Association of Criminal Defense Lawyers

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Justice Petersen authored the opinion of the Court, in

which Chief Justice Durrant, Associate Chief Justice

Pearce, Justice Hagen, and Judge Walton joined.

On Certiorari to the Utah Court of Appeals

Justice Petersen, opinion of the Court:

INTRODUCTION

*1 ¶1 Police officers arrested Alfonso Valdez for kidnapping and assaulting his ex-girlfriend. He had a cell

phone in his pocket, and the officers seized it from

him. 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.

¶2 Later, at Valdez’s trial, the State elicited testimony

from the detective about Valdez’s refusal to provide

his passcode when asked. And during closing arguments, the State argued in rebuttal that Valdez’s refusal and the resulting lack of evidence from his cell

phone undermined the veracity of one of his defenses.

The jury convicted Valdez.

¶3 But on appeal, the court of appeals reversed the

conviction. It agreed 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 court found that the error

was not harmless beyond a reasonable doubt, and it

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reversed Valdez’s conviction and remanded the case

back to the district court for further proceedings.

¶4 On certiorari, the question before us is whether the

State’s references at trial to Valdez’s refusal to provide his passcode constituted impermissible commentary on his decision to remain silent. Both the State

and Valdez contend that the answer to this question

turns on whether Valdez’s refusal is protected by the

Fifth Amendment’s privilege against self-incrimination. The Fifth Amendment applies where a communication (here, providing a cell phone passcode) is

compelled, testimonial, and incriminating. See Hiibel

v. Sixth Jud. Dist. Ct. of Nev., 542 U.S. 177, 189, 124

S.Ct. 2451, 159 L.Ed.2d 292 (2004).

¶5 The State does not challenge the court of appeals’

determination that the communication at issue was

compelled and incriminating. The State’s only objection to the court of appeals’ Fifth Amendment analysis

is that providing a passcode is not a testimonial communication. The State contends this is so because the

passcode itself “lacks ‘semantic content and is entirely

functional,’ ” and therefore “turning it over is akin to

handing over a physical key—a non-testimonial act.”

(Quoting David W. Opderbeck, The Skeleton in the

Hard Drive: Encryption and the Fifth Amendment, 70

FLA. L. REV. 883, 916 (2018).) Because of this, the

State also argues that an exception to the Fifth

Amendment referred to as the “foregone conclusion”

exception applies here. The State reasons that, even if

providing a passcode could be considered testimonial,

the only meaningful information it would have conveyed here was that Valdez knew the passcode to the

phone. But because the police already knew the phone

belonged to Valdez—and presumably that he would

know the passcode to his own phone—this information

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would not convey anything new to law enforcement.

The State argues that this triggers the foregone conclusion exception. Finally, the State argues in the alternative that during the trial, Valdez put the contents of his phone at issue, so the prosecutor’s comments were permissible as a fair response to an issue

that Valdez initiated.

*2 ¶6 Whether an accused has a Fifth Amendment

right not to disclose a passcode to an electronic device

when law enforcement has a valid warrant to search

the device is a question of first impression for this

court. The United States Supreme Court has not yet

addressed this specific question, so we analyze existing Fifth Amendment precedent to determine how it

should extend to this new factual context.

¶7 The prevalence of passcodes that encrypt the information on electronic devices—which are often seized

by law enforcement while investigating criminal conduct—has raised important questions about how the

Fifth Amendment extends to law enforcement’s efforts

to unlock these devices and decrypt the contents inside. These questions have proven to be especially

complex where law enforcement attempts to access

the contents of a seized device by means that do not

require the suspect to disclose the actual passcode—

like, for example, obtaining an order to compel the

suspect to provide an unlocked device.

¶8 But that is not the situation we have before us.

Here, law enforcement asked Valdez to verbally provide his passcode. While these circumstances involve

modern technology in a scenario that the Supreme

Court has not yet addressed, we conclude that these

facts present a more straightforward question that is

answered by settled Fifth Amendment principles.

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¶9 We agree with the court of appeals that verbally

providing a cell phone passcode is a testimonial communication under the Fifth Amendment. And we also

agree that the “foregone conclusion” exception does

not apply. This exception arises in cases analyzing

whether an “act of production” has testimonial value

because it implicitly communicates information. But

here, we have a verbal communication that would

have explicitly communicated information from Valdez’s mind, so we find the exception inapplicable. Finally, we reject the State’s “fair response” argument

because the State elicited the testimony about Valdez’s refusal to provide his passcode in its case in chief

before Valdez had raised any issue involving the contents of his phone.

¶10 Accordingly, the State has not provided a basis for

reversal. We affirm the court of appeals.

BACKGROUND2

¶11 Alfonso Valdez and Jane3 dated and lived together briefly. Valdez was often violent during the relationship. Ultimately, Jane and Valdez separated,

and Jane moved out.

¶12 Two months later, Valdez texted Jane and asked

her to meet him. In the text exchange, Valdez claimed

that he had received some of Jane’s mail after she

moved out and wanted to give it to her. Jane agreed to

2 “On appeal from a jury trial, we review the record facts in a

light most favorable to the jury’s verdict and recite the facts accordingly.” State v. Speights, 2021 UT 56, ¶ 4 n.1, 497 P.3d 340

(cleaned up).

3 We use a pseudonym to protect the identity of the victim in

this case.

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meet Valdez outside her work following one of her

shifts, but she feared that Valdez might become violent.

¶13 At the agreed-upon time and place, Jane located

Valdez in his SUV and approached the passenger side.

But rather than presenting her with mail, Valdez

pointed a handgun at her and told her to get into the

vehicle. She complied, and Valdez drove away with

Jane in the car. As he was driving, Valdez verbally

and physically assaulted Jane. He also forced her to

give him her cell phone and purse. Jane was eventually able to jump out of the car and run away. She

called the police from a nearby residence, but Valdez

was gone before the police arrived.

The Investigation

*3 ¶14 The police located Valdez at his home that

evening. They arrested him and transported him to

the police station for questioning.

¶15 There, a detective seized Valdez’s cell phone from

him. He then read Valdez the Miranda warnings. And

Valdez chose not to speak with the detective.

¶16 At some point that is not clear from the record,

the police obtained a search warrant for Valdez’s

phone.4 But the phone was protected by a nine-dot

4 This search warrant was not made part of the record on ap-

peal. Further, the record is unclear as to whether the search warrant provided authority only for police to obtain the contents of

the cell phone, or also explicitly included authority for police to

obtain the phone’s passcode to execute the search. During a colloquy with the district court at trial, the State said that “[a] warrant was obtained for the passcode.” But when questioning the

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pattern passcode, which the police did not know. They

made numerous failed attempts to access the contents

of the phone without the passcode.

¶17 Later, under circumstances that are not developed in the record, the detective approached Valdez

and asked Valdez to provide the phone’s passcode. The

detective explained that he had a search warrant for

the phone, and that if Valdez did not give him the

passcode, he would have to unlock the phone with a

“chip-off” procedure that would destroy the phone in

the process. Valdez refused to give the detective his

passcode and told the detective to just “destroy the

phone.”

¶18 Law enforcement was unable to retrieve the contents of Valdez’s cell phone. As it turned out, even the

chip-off procedure would not work. And during the

criminal proceeding, the State did not move to compel

Valdez to provide the passcode. Notably, the police

were also unable to locate Jane’s cell phone following

the incident. So they were never able to look for evidence in either phone of the text exchange that led to

Jane meeting with Valdez.

Valdez’s Trial

¶19 Valdez’s case went to trial. During the State’s case

in chief, the detective testified that although the police

had a search warrant for Valdez’s phone, they “were

unable to gain access to the data inside the phone.”

The State then asked the detective, “[A]re you familiar

with why you were unable to access the data?” He

detective, the State asked him if he obtained a “warrant to search

the phone,” to which he replied, “Yes, I did.” (Emphasis added.)

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answered, “Yes.” The State continued: “Why is that?”

When the detective began to respond about the need

for a passcode, defense counsel promptly requested a

bench conference.

¶20 Counsel argued to the district court that Valdez

had “a Fifth Amendment right ... to not provide [that]

information.” The State responded that “a warrant

was obtained for the [passcode],” the detective “served

the warrant on [Valdez],” and “[Valdez] refused to give

the [passcode].” The State then argued that “[t]he jury

ha[d] a right to know why the officers were unable to

access the phone when there could have been evidence

very pertinent to the case.” The district court overruled defense counsel’s objection.

¶21 The detective went on to testify about the specifics

of his attempt to obtain Valdez’s passcode. He relayed

that he had “explained to [Valdez] that [he] had a

search warrant” and was “asking for his passcode, otherwise [the police] were going to have to attempt to

chip [it] off, [a] maneuver [where] you send [the

phone] down to the lab at Dixie laboratories,” which

“destroys the phone.” He testified that in response,

Valdez refused to give his passcode and, seemingly in

reference to the likely result of the chip-off procedure,

told the detective that he could “destroy the phone.”

*4 ¶22 After the State rested its case, Valdez moved

for a mistrial based in part on the State’s elicitation of

the detective’s testimony about Valdez’s refusal to

provide his cell phone passcode—again citing Fifth

Amendment protections. After hearing argument on

the motion, the district court stated that “the Fifth

Amendment does not necessarily protect someone

from ... almost obstructing an investigation by refusing to cooperate with police.” The district court

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explained that it was not inclined to treat Valdez’s refusal to give the passcode as warranting Fifth Amendment protection. But the district court told the parties

that it wanted to consider the issue further before

making a definitive ruling. Ultimately, however, neither the parties nor the district court raised the motion again and, accordingly, no final ruling was made

on the matter.

¶23 Next, the defense called multiple witnesses in

Valdez’s case in chief. Of relevance here, the defense

called Valdez’s ex-wife to the stand. The ex-wife’s testimony countered Jane’s earlier description of the incident with Valdez. She testified that shortly before

Jane met Valdez at his SUV, Jane had shown her

texts between Jane and Valdez that were “sexual of

some nature” and that demonstrated, “between the

both of them[,] a little anger, maybe kind of a makeup

kind of thing.” In contrast to the State’s theory of a

violent kidnapping, the ex-wife’s testimony painted

Valdez and Jane’s encounter as consensual.

¶24 During closing arguments, the State argued in rebuttal that the ex-wife’s testimony was not credible

because the texts were not in evidence:

Now, you heard [the ex-wife] say that

she saw some texts. They were going

to get back together and do sexual

things. The state was very interested.

You heard testimony from ... witnesses about the efforts that were

taken to get into the defendant’s

phone to determine what, if any, communication happened between the

two of them. You heard testimony

about how the state used the lab that

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we had here. Detective Hartman

came and testified about the process

that he went through, that the Weber

County lab was unable to get into

that phone. How there was an attempt made by [the detective] to

reach out to another lab within the

system. But that system was also unable to get into the phone. The only

way they could get into that phone to

see what these text messages said was

by getting the code from the defendant. And he chose to decline to do that.

And they then attempted to use different codes ... some common

[passcodes], and got it to the point

where I think he said there were

three attempts left and the phone was

going to ... [g]o back to a factory reset.

And it would lose all the information.

And, at that point, [the detective]

stopped trying. They didn’t want to

lose the data on the phone.

The state made and took a lot of effort

to see what communications had gone

on between them. Instead of providing any proof of text messages, they

bring in the defendant’s ex-wife to say

that she, [who] didn’t have a good relationship with the victim, happened

to see the text between them [that]

was of a sexual nature. Think of the

motive she had to lie. ... Ladies and

gentlemen, use your common sense.

Those texts [aren’t] here today.

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¶25 The jury convicted Valdez of aggravated assault

and the lesser included offenses of kidnapping and

robbery. Valdez appealed.

Court of Appeals’ Decision

¶26 In the court of appeals, Valdez argued that the

State violated his Fifth Amendment privilege against

self-incrimination when it commented at trial on his

refusal to provide the cell phone passcode. In analyzing this claim, the court of appeals stated that it was

not contested that Valdez had been “compelled” to provide the passcode and that providing the passcode

would have been “incriminating.” The court reasoned

that the passcode was compelled because “[t]he State

implied at trial that Valdez had an obligation to provide the swipe code to the investigating officers, and

that he had no right to refuse.” State v. Valdez, 2021

UT App 13, ¶ 25, 482 P.3d 861. And the court concluded that the passcode would have been incriminating because “it has long been settled that the Fifth

Amendment’s self-incrimination protection encompasses compelled statements that lead to the discovery of incriminating evidence even though the statements themselves are not incriminating and are not

introduced into evidence.” Id. (cleaned up).

*5 ¶27 Accordingly, the court of appeals focused on

whether a verbal statement of the passcode would

have been “testimonial.” Id. ¶ 26. Noting that the record was not clear, based on the “best reading of the

record,” the court proceeded with the understanding

that the detective had asked “Valdez to make an affirmative verbal statement” “to provide the swipe code

itself.” Id. ¶¶ 34 –35. And the court held that this

“would have unquestionably been testimonial.” Id. ¶

35.

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¶28 Next, the court of appeals assessed the State’s

contention that even if a verbal expression of the

passcode were testimonial, such a statement would

fall within what has been termed the “foregone conclusion” exception to the Fifth Amendment.5 The

State argued that this exception applied because the

passcode had “minimal testimonial significance” and

added nothing to the State’s case against Valdez. Id.

¶ 36. The court of appeals disagreed. It concluded that

the exception is limited in scope, and the request for

Valdez to verbally provide his passcode did not fall

within the exception’s tight boundaries. Id. ¶¶ 37 –44.

¶29 Having determined that Valdez’s refusal to provide his passcode was protected by the Fifth Amendment, the court of appeals concluded that the State’s

commentary at trial on Valdez’s refusal was a Fifth

Amendment violation. Id. ¶¶ 45 –48. The court rested

its holding on Griffin v. California, 380 U.S. 609, 85

S.Ct. 1229, 14 L.Ed.2d 106 (1965), which held that the

5 The term “foregone conclusion” first appeared in a Supreme

Court case in which the Court analyzed whether an act of producing documents in response to a government subpoena might

warrant Fifth Amendment protection because the act implicitly

communicated information to the government. See Fisher v.

United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976).

The Court determined that the act of production at issue was not

“testimonial” because any information that was implicitly communicated by the act was already known to the government and

was therefore a “foregone conclusion.” Id. at 411, 96 S.Ct. 1569.

Courts have applied the foregone conclusion exception in cases

involving Fifth Amendment claims ever since. See, e.g., In re

Grand Jury Subpoena Duces Tecum Dated Mar. 25, 2011, 670

F.3d 1335, 1346–49 (11th Cir. 2012); Commonwealth v. Davis,

656 Pa. 213, 220 A.3d 534, 548–51 (2019); People v. Sneed, No.

127968, ––– Ill.Dec. ––––, ––– N.E.3d ––––, 2023 WL 4003913,

at *13–16 (Ill. June 15, 2023).

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Fifth Amendment forbids either comment by the prosecution or instructions by the court that an accused’s

decision to not testify at trial is evidence of guilt. Valdez, 2021 UT App 13, ¶ 45, 482 P.3d 861. On the

court’s reading of the record, the State had directly

elicited testimony regarding Valdez’s refusal to provide the passcode during its case in chief and then

used that testimony in its closing argument to undercut Valdez’s defense and invite the jury to make an

inference of Valdez’s guilt. Id. ¶¶ 46 –47. The court of

appeals held that this use of Valdez’s constitutionally

protected silence against him impermissibly contravened the Fifth Amendment as described in Griffin.

Id. ¶¶ 47 –48.6 And the court concluded that this

6 Neither party challenges the court of appeals’ reliance on

Griffin on this point. Indeed, both parties rely on Griffin in the

same manner. However, we note that the silence involved in Griffin was a defendant’s decision not to testify at trial. Griffin v.

California, 380 U.S. 609, 609–10, 614–15, 85 S.Ct. 1229, 14

L.Ed.2d 106 (1965). In a footnote in Miranda v. Arizona, the

Court indicated that the rationale of Griffin would apply to trial

commentary on a defendant’s post-arrest, post-Miranda silence.

384 U.S. 436, 468 n.37, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (“In

accord with our decision today, it is impermissible to penalize an

individual for exercising his Fifth Amendment privilege when he

is under police custodial interrogation. The prosecution may not,

therefore, use at trial the fact that he stood mute or claimed his

privilege in the face of accusation. Cf. Griffin v. State of California ....”). But neither of the parties have identified a case where

the Court has actually applied Griffin to trial commentary about

a defendant’s post-Miranda, pre-trial silence. This may be because it generally looks to the Due Process Clause in such circumstances. See Greer v. Miller, 483 U.S. 756, 761–65, 107 S.Ct.

3102, 97 L.Ed.2d 618 (1987) (explaining that in a case involving

trial commentary on post-Miranda, pre-trial silence, “[t]he starting point of [the Court’s] analysis is Doyle v. Ohio” and the Due

Process Clause). We note this to clarify that if the State had

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violation was not harmless beyond a reasonable doubt

and therefore Valdez’s conviction had to be vacated.

Id. ¶¶ 51 –53.

*6 ¶30 On this basis, the court of appeals reversed

Valdez’s conviction and remanded to the district court

for further proceedings. Id. ¶ 58.

¶31 The State petitioned this court for certiorari,

which we granted. We have jurisdiction under Utah

Code section 78A-3-102(3)(a).

STANDARD OF REVIEW

¶32 “On certiorari, this court reviews the decision of

the court of appeals for correctness, giving no deference to its conclusions of law.” State v. Scott, 2020 UT

13, ¶ 27, 462 P.3d 350 (citation omitted).

ANALYSIS

¶33 In granting certiorari, we certified the following

question:

Whether the Court of Appeals erred

in concluding that [the State’s] elicitation and use of testimony about

[Valdez’s] refusal to provide a code for

his phone constituted an impermissible commentary on an exercise of a

decision to remain silent.

challenged the applicability of Griffin, Valdez would have needed

to provide legal argument and analysis about why Griffin should

be extended to the circumstances here—trial commentary on

Valdez’s post-Miranda, pre-trial silence—instead of the traditional “starting point” of such an analysis under Doyle v. Ohio

and the Due Process Clause. Id. at 761, 107 S.Ct. 3102.

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¶34 Both parties focus their answer to this question

on whether Valdez had a Fifth Amendment right to

refuse to provide his passcode in the first instance.

The State argues that if Valdez had no such privilege,

then at trial, “the State could introduce evidence of his

refusal to comply with a lawful court order and argue

that it supported his guilt.” Valdez agrees with this

framing of the issue. He argues that if his refusal was

protected by the Fifth Amendment, then the State’s

trial commentary undermined his Fifth Amendment

privilege against self-incrimination.7

For purposes of this appeal, we address only the Fifth

Amendment arguments that the parties have made. But to avoid

confusion in future cases, we clarify that it is usually the Due

Process Clause that governs the analysis of a claim that the State

improperly commented on a defendant’s post-arrest, postMiranda silence at trial. Although the record indicates that Valdez was Mirandized and chose not to speak with police before the

detective asked him for his passcode, we do not opine on how the

Due Process Clause applies here because Valdez has not advanced such an argument. But we clarify that, generally, the

United States Supreme Court has established that the government cannot comment at trial on a defendant’s post-arrest, postMiranda silence as a matter of fundamental fairness under the

Due Process Clause. See Doyle v. Ohio, 426 U.S. 610, 617–18, 96

S.Ct. 2240, 49 L.Ed.2d 91 (1976). This is so because the Miranda

warning itself carries an implicit assurance that silence will

carry no penalty. Id. at 618, 96 S.Ct. 2240. In other words, “once

a person has been told they have ‘the right to remain silent,’ it is

unconstitutional to then use their silence against them.” State v.

Bonds, 2023 UT 1, ¶ 51 n.10, 524 P.3d 581 (quoting Doyle, 426

U.S. at 617–18, 96 S.Ct. 2240). And this due process rationale

does not depend on whether the “silence” would independently

qualify for Fifth Amendment protection. See Wainwright v.

Greenfield, 474 U.S. 284, 291 n.7, 106 S.Ct. 634, 88 L.Ed.2d 623

(1986) (“Notably, the Court in Doyle did not rely on the contention that Ohio had violated the defendants’ Fifth Amendment

7

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*7 ¶35 The State argues that the court of appeals

erred in reversing Valdez’s conviction for three reasons: (1) Valdez’s refusal was not protected by the

Fifth Amendment because providing a cell phone

passcode to law enforcement is not a testimonial communication; (2) even if Valdez’s statement of his

passcode had some testimonial value because it would

implicitly communicate that Valdez knew the

passcode, the police already knew the phone belonged

to Valdez, so the foregone conclusion exception should

apply in this case; and, in the alternative, (3) the prosecutor’s trial commentary was a fair response to Valdez putting the phone’s contents at issue.

¶36 We first address the State’s argument that

providing a passcode is not a testimonial communication. We disagree. Providing a passcode is testimonial

because it is a communication that discloses information from the person’s mind. We then move to the

State’s other arguments. We conclude that the

privilege against self-incrimination by asking the jury to draw an

inference of guilt from the exercise of their constitutional right to

remain silent.”); Salinas v. Texas, 570 U.S. 178, 188 n.3, 133

S.Ct. 2174, 186 L.Ed.2d 376 (2013) (“Petitioner is correct that due

process prohibits prosecutors from pointing to the fact that a defendant was silent after he heard Miranda warnings, Doyle v.

Ohio, 426 U.S. 610, 617–618, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976),

but that rule does not apply where a suspect has not received the

warnings’ implicit promise that any silence will not be used

against him ....”). Accordingly, while we analyze here whether

Valdez’s refusal meets the requirements for Fifth Amendment

protection because that is the argument before us, we want to

make clear that, in general, the Due Process Clause protects an

accused’s post-arrest, post-Miranda silence because they have

been told that they have the right to remain silent, regardless of

whether the statement was compelled, testimonial, and incriminating.

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foregone conclusion exception does not apply here.

That exception arises in cases involving compelled

acts of producing evidence to determine whether the

act has any testimonial value because the act implicitly conveys information. Such an analysis is not necessary in a case involving a verbal statement that explicitly provides information. And finally, we reject

the State’s argument that the State’s commentary at

trial was permissible because it was a fair response to

arguments made by Valdez.

¶37 These are the only challenges the State raises to

the court of appeals’ decision. It does not argue that

the communication was not compelled or incriminating, so those issues are not before us. Accordingly, the

State has not persuaded us that the court of appeals’

decision should be reversed. And we affirm.

I. VERBALLY PROVIDING A CELL PHONE

PASSCODE TO LAW ENFORCEMENT IS A

TESTIMONIAL COMMUNICATION

¶38 The State’s first contention is that providing a cell

phone passcode to law enforcement is not “testimonial” under the Fifth Amendment because the

passcode has no inherent semantic content and is

equivalent to the physical act of turning over a key.

The Self-Incrimination Clause of the Fifth Amendment reads: “No person ... shall be compelled in any

criminal case to be a witness against himself.” U.S.

CONST. amend. V. The Supreme Court has explained

that “the privilege protects a person only against being incriminated by his own compelled testimonial

communications.” Doe v. United States, 487 U.S. 201,

207, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988) (cleaned

up). Thus, the Self-Incrimination Clause applies to

communications that are “testimonial, incriminating,

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and compelled.” Hiibel v. Sixth Jud. Dist. Ct. of Nev.,

Humboldt Cnty., 542 U.S. 177, 189, 124 S.Ct. 2451,

159 L.Ed.2d 292 (2004).

¶39 The court of appeals stated that the “compelled”

and “incriminating” elements of the Fifth Amendment

analysis were not disputed in this case. State v. Valdez, 2021 UT App 13, ¶ 25, 482 P.3d 861. The parties

have not argued otherwise on certiorari. And the State

challenges only the court of appeals’ conclusion that

providing a passcode is “testimonial.” So this case

turns only on whether verbally providing a passcode

to a cell phone is a “testimonial communication.”8

8 In this case, determining the testimonial nature of provid-

ing a passcode is largely a legal issue that we can determine on

the record before us. But if there would have been a dispute about

whether the communication was compelled or incriminating, it

would have been difficult to resolve those issues on this record.

This is because the State did not move in the district court to

compel Valdez to provide his passcode (or an unlocked phone). So

there was no direct litigation in the district court as to whether

the Fifth Amendment shielded Valdez from doing so. There was

only a passing reference to the Fifth Amendment at trial in relation to whether the prosecutor’s comments were permissible.

Consequently, there is not much evidence or legal argument in

the record relevant to whether the communication was compelled, testimonial, and incriminating. And there are no factual

findings or legal conclusions by the district court with respect to

those issues. Because the State has not disputed that the communication here was compelled and incriminating, we need not

address those Fifth Amendment elements and we focus only on

the testimonial nature of the communication at issue. We express

no opinion as to whether the communication here was compelled

and incriminating. But in future cases involving disputes over

government efforts to compel the decryption of the contents of

electronic devices, we encourage parties to develop in the district

court a sufficient factual and legal record of the application of the

20a

*8 ¶40 In general, “to be testimonial, an accused’s

communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Doe,

487 U.S. at 210, 108 S.Ct. 2341. This is because it is

the “extortion of information from the accused himself

that offends our sense of justice.” Couch v. United

States, 409 U.S. 322, 328, 93 S.Ct. 611, 34 L.Ed.2d 548

(1973). Put another way, the “touchstone” used to determine if communication “is testimonial is whether

the government compels the individual to use the contents of his own mind to explicitly or implicitly communicate some statement of fact.” In re Grand Jury

Subpoena Duces Tecum Dated Mar. 25, 2011, 670 F.3d

1335, 1345 (11th Cir. 2012) (cleaned up). “Only then

is a person compelled to be a ‘witness’ against himself.” Doe, 487 U.S. at 210, 108 S.Ct. 2341.

¶41 Although the Supreme Court has not yet addressed how the Fifth Amendment applies in this factual context, many state and federal courts have grappled with this issue. In doing so, the courts have generally faced two different factual scenarios that vary

based on how law enforcement sought to decrypt the

contents of the seized device. As the court of appeals

identified, there are two common ways law enforcement might go about accessing the contents of a suspect’s locked cell phone that entail the suspect’s cooperation. Valdez, 2021 UT App 13, ¶ 32, 482 P.3d 861.

First, an officer could ask or seek to compel the suspect to provide the passcode verbally or in writing. Id.

Or second, an officer could ask or seek to compel the

suspect to turn over an unlocked phone—whether

Fifth Amendment if they wish to seek appellate review of these

emergent issues.

21a

through biometric means (for example, fingerprint or

facial identification) or through entering the passcode

themselves without providing the passcode to police.

Id. In the first scenario, the suspect is asked to tell the

officers what the passcode is, the officers learn that

information, and the officers may enter the code into

the phone to unlock it themselves. Id. In the second

scenario, the suspect is asked to do something to unlock the phone themselves, but they are not asked to,

and do not, share the passcode itself with law enforcement. Id.

¶42 The scenarios are similar in many respects. In

both, law enforcement is interested in the contents of

the device, not the passcode itself—although there

could be unique circumstances where a passcode has

some independent meaning relevant to an investigation. But for the most part, we agree with the State

that the passcode functions primarily like a key to unlock the device. It generally does not have meaning of

its own. And functionally, there may not be much realworld difference between verbally speaking or writing

out a passcode for the police and physically providing

an unlocked device to the police. Both give access to

the contents of the device—the ultimate objective of

law enforcement.

¶43 Yet, the two scenarios present distinct issues under the Fifth Amendment. The first scenario involves

an oral or written statement explicitly conveying information. It presents what we might call “[o]rdinary

testimony,” which “involves a person communicating

facts through language, using arbitrary sounds that

the witness and the listeners intend and understand

to be communicative.” Laurent Sacharoff, What Am I

Really Saying When I Open My Smartphone? A

22a

Response to Orin S. Kerr, 97 TEX. L. REV. ONLINE

63, 66 (2019).

¶44 The second scenario involves a physical act that

may implicitly convey information to the government.9 Physical acts may or may not implicate the

Fifth Amendment, depending on the factual circumstances. The Supreme Court has held that certain

physical acts, such as providing a blood sample, giving

a handwriting or voice exemplar, standing in a lineup,

or wearing a particular item of clothing do not require

a person to disclose the contents of their mind. Doe,

487 U.S. at 210, 108 S.Ct. 2341. Rather, these acts

“make[ ] a suspect or accused the source of real or

physical evidence” themselves. Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 16 L.Ed.2d 908

(1966) (cleaned up). These acts do not require the suspect to “testify against himself[ ] or otherwise provide

the State with evidence of a testimonial or communicative nature” and, accordingly, are not “testimonial”

under the Fifth Amendment. Doe, 487 U.S. at 210–11,

108 S.Ct. 2341.

*9 ¶45 In contrast, the Court has deemed some physical acts to have testimonial value and therefore to fall

within the Fifth Amendment’s protection. In a line of

cases involving government subpoenas for the production of evidence, the Supreme Court has held that

sometimes an “act of producing evidence ... has communicative aspects of its own, wholly aside from the

contents ... produced.” Fisher v. United States, 425

9 See Doe v. United States, 487 U.S. 201, 210, 108 S.Ct. 2341,

101 L.Ed.2d 184 (1988) (“[I]n order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate

a factual assertion or disclose information.”) (emphasis added).

23a

U.S. 391, 410, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976).

Though the act of production does not explicitly communicate information through oral or written language, it may implicitly communicate certain information to the government. For instance, the act of responding to a subpoena for documents “tacitly concedes the existence of the papers demanded and their

possession or control by the [suspect]. It also would indicate the [suspect’s] belief that the papers are those

described in the subpoena.” Id.

¶46 In attempting to distinguish acts that are not testimonial from those that are, some courts have turned

to an analogy advanced by Justice Stevens in his dissent in Doe, 487 U.S. at 219–21, 108 S.Ct. 2341 (Stevens, J., dissenting). Justice Stevens presented two

circumstances: a suspect turning over a physical key

to a strongbox and a suspect revealing the combination to a wall safe. Id. at 219, 108 S.Ct. 2341. To Justice Stevens, under the Fifth Amendment, a suspect

“may in some cases be forced to surrender a key to a

strongbox containing incriminating documents,” but

that person cannot “be compelled to reveal the combination to his wall safe—by word or deed.” Id. The majority in Doe agreed with Justice Stevens’s formulation, stating that it did “not disagree with the dissent

that the expression of the contents of the individual’s

mind is testimonial communication.” Id. at 210, 108

S.Ct. 2341 n.9 (cleaned up). But the majority held that

the compelled act at issue in that case was “more like

being forced to surrender a key to a strongbox containing incriminating documents than it is like being compelled to reveal the combination to [a] wall safe.” Id.

(cleaned up).

¶47 Then, in United States v. Hubbell, 530 U.S. 27,

120 S.Ct. 2037, 147 L.Ed.2d 24 (2000), the Supreme

24a

Court further utilized the key/combination analogy.

The Court explained that in identifying, assembling,

and producing the large number of documents requested by a government subpoena in that case, “[i]t

was unquestionably necessary for [the] respondent to

make extensive use of the contents of his own mind.”

Id. at 43, 120 S.Ct. 2037 (cleaned up). And it held that

doing so was “like telling an inquisitor the combination to a wall safe, not like being forced to surrender

the key to a strongbox.” Id.

¶48 Thus, determining which scenario we are presented with dictates the analytical framework we

must use to determine whether a statement or act is

testimonial. If we are dealing with a suspect’s oral or

written communication that explicitly conveys information from the suspect’s mind (scenario number

one), we are in familiar Fifth Amendment territory.

But if we are faced with a compelled act of producing

evidence—such as handing over an unlocked phone

(scenario number two)—we must determine whether

the act implicitly conveys information and therefore

has testimonial value for Fifth Amendment purposes.

¶49 In this case, we agree with the court of appeals

that the best reading of the record is that the detective

asked Valdez to verbally provide his passcode, placing

us in scenario number one. Valdez, 2021 UT App 13,

¶ 34, 482 P.3d 861. At trial, the detective testified that

he explained to Valdez that he “had a search warrant”

for the phone, that he “was asking for [Valdez’s]

[passcode],” and that Valdez responded by “refus[ing]

to give [the detective] the [passcode].” Neither the

State nor Valdez questioned the detective about the

details of this exchange—like whether he asked Valdez to verbally tell him the passcode, to physically

demonstrate the swipe pattern, or to input the

25a

passcode and hand over the unlocked phone. Nevertheless, we agree with the court of appeals that the

best reading of the record is that the detective asked

Valdez to tell him the passcode to the phone. The detective testified that he “asked for” the passcode and

that Valdez refused “to give [him] the [passcode].” And

the State has not challenged the court of appeals’

reading of the record on certiorari. We therefore proceed with the understanding that the first scenario

discussed above applies here: that the police officer

asked Valdez to provide the passcode itself and did not

ask Valdez to unlock the phone and then hand it over.

*10 ¶50 Although this case involves the oral provision

of a passcode, the State applies the United States Supreme Court’s act-of-production jurisprudence. The

State argues that providing a memorized passcode to

a cell phone is more akin to handing over a physical

key than providing the combination to a wall safe. The

State explains that all phone passcodes rely on encryption, which makes a message secret using an algorithm. To decrypt it is to reveal the secret using a

“key” derived from the encryption algorithm. (Citing

David W. Opderbeck, The Skeleton in the Hard Drive:

Encryption and the Fifth Amendment, 70 FLA. L.

REV. 883, 885 (2018).) The State further explains that

a “decryption key is simply the mirror image of the

encryption algorithm.” And since it has “no use or

meaning but to decrypt that set of data, returning it

to readable form,” “it lacks ‘semantic content and is

entirely functional.’ ” (Quoting Opderbeck, supra, at

916.) And the State reasons that since a passcode is

functionally a key, “[a]ll Valdez would have been compelled to do was to open the door to [the police].” The

State queries, “If a person opens the door to a home

that police have a warrant to search, how has he

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testified?” On this basis, the State argues that turning

over a passcode is like handing over a physical key,

which is a non-testimonial act of production.

¶51 While we recognize that communicating a

passcode to the police and physically providing an unlocked phone to the police may be functionally equivalent in many respects, this functional equivalency is

not dispositive under current Fifth Amendment jurisprudence. We conclude that the act-of-production analytical framework makes sense only where law enforcement compels someone to perform an act to unlock an electronic device. Where an act is involved, the

act-of-production analysis teases out whether the act

implicitly communicates information and, therefore,

has testimonial value.10 But where a suspect is asked

10 See, e.g., In re Grand Jury Duces Tecum Dated Mar. 25,

2011, 670 F.3d 1335, 1341 (11th Cir. 2012) (applying the act-ofproduction doctrine in the context of a court order “to compel [an

individual] to decrypt and hand over the contents of” certain hard

drives); Commonwealth v. Gelfgatt, 468 Mass. 512, 11 N.E.3d

605, 611 (2014) (analyzing whether “compelling the defendant to

enter the key to encryption software on various digital media

storage devices” compelled a “testimonial communication” under

the act-of-production doctrine); State v. Stahl, 206 So. 3d 124, 133

n.9 (Fla. Dist. Ct. App. 2016) (applying the act-of-production doctrine where “[n]either the State nor [the defendant] addresse[d]

the State’s request as anything but an act of production,” but noting “it [was] not entirely clear from the record whether the State

want[ed] [the defendant] to testify to the passcode or to enter it

into the phone,” and that “[i]f the former, the State’s request

could [have] be[en] considered under the traditional analysis of

the self-incrimination privilege—that of verbal communications”); Seo v. State, 148 N.E.3d 952, 954 (Ind. 2020) (applying

the act-of-production doctrine where a warrant “compelled [the

defendant] to unlock [a] device and stated [the defendant] would

be subject to the contempt powers of the court if she failed to do

so” (cleaned up)).

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to provide their passcode to law enforcement, the actof-production analysis is not useful. Directly providing

a passcode to law enforcement is not an “act.” It is a

statement. There is no need to tease out whether the

statement implicitly communicates information to determine whether it has testimonial value. The statement explicitly communicates information from the

suspect’s own mind. Accordingly, it is a traditional testimonial communication. And there is no need to resort to the act-of-production framework.

¶52 Notably, scholars appear to recognize this fundamental distinction. For example, in limiting the scope

of one of his articles, Orin S. Kerr focused his discussion on “the Fifth Amendment framework for compelling acts of decryption by entering a password without

disclosing it to the government” because “[c]ompelled

use of biometrics and compelled disclosure of passwords raise different Fifth Amendment issues.” Orin

S. Kerr, Compelled Decryption and the Privilege

Against Self-Incrimination, 97 TEX. L. REV. 767, 768

n.5 (2019) (emphasis added).

*11 ¶53 And in another article, Kerr and Bruce

Schneier discussed the various ways that law enforcement might obtain access to the encrypted contents of

locked cell phones. They observed that in one method,

“the government might seek an order requiring a person to disclose [a passcode] to the government.” Orin

S. Kerr & Bruce Schneier, Encryption Workarounds,

106 GEO. L.J. 989, 1001 (2018). But they noted that

“[t]he primary barrier to this method is the Fifth

Amendment privilege against self-incrimination.” Id.

They explained that “[w]hen the government uses the

threat of legal punishment to compel an individual to

divulge a [passcode], the government is seeking to

compel testimony. The person is being forced to go into

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his memory and divulge his recollection of the

[passcode].” Id. at 1001–02 (cleaned up).

¶54 In this same article, shifting to compelled decryption specifically, Kerr and Schneier posit that “the

government might instead order individuals to produce a decrypted device. Investigators typically provide the person with a locked device, and the person

can comply with the order by entering the [passcode]

without disclosing it to the government.” Id. at 1002.

The authors state that “[t]he Fifth Amendment once

again provides the legal framework, although the

standard for compelled acts of decryption may be different than the standard for disclosing a [passcode].”

Id. (emphasis added) (footnote omitted). And they continued, stating that “[c]ourts have analyzed compelled

acts of decryption under the act of production doctrine

.... [where] an act is testimonial for what it implicitly

communicates about a person’s state of mind.” Id. (emphasis added).

¶55 Another scholar, Laurent Sacharoff, has referred

to this type of implicit communication as “quasi testimony” because the “inadvertent communication does

not entirely resemble ordinary speech.” Laurent Sacharoff, Unlocking the Fifth Amendment: Passwords

and Encrypted Devices, 87 FORDHAM L. REV. 203,

218 n.98 (2018). Indeed, the term “reminds us that the

[Supreme] Court affords act-of-production testimony

less protection under the Fifth Amendment than it

does to full-fledged oral or written testimony.” Id. To

Sacharoff, this discrepancy in protection is logical because requiring a suspect to verbally state a passcode

to the government “directly involve[s] testimony in its

purest form and therefore should trigger direct Fifth

Amendment protections.” Id. at 223. Accordingly,

29a

“stating a password to authorities falls within this

core protection” of the Fifth Amendment. Id. at 224.

¶56 Sacharoff provides a useful example that may

help illuminate the distinction. See id. at 225. Assume

that a criminal suspect has the passcode to their desktop computer written down on a sticky note in their

filing cabinet at home. Further assume that in seeking

to obtain files on the suspect’s desktop computer in an

ongoing criminal investigation into the suspect, the

government subpoenas the suspect to produce any

documents with the password to the computer. As Sacharoff points out, while “such compulsion does not directly violate the Fifth Amendment because the person voluntarily created the document before the subpoena and has thus not been compelled[,] ...the Fifth

Amendment may protect against such compulsion if

the act of producing [the sticky note] with the password would, itself, be testimonial.” Id. This is because

by producing the sticky note, the suspect “implicitly

testifies that the number written there is a password

and that it is a password for this device.” Id. “In other

words, [the suspect] authenticates the content by producing it.” Id. But if the suspect had been compelled

to say their computer password to the government,

there would be no need to use the act-of-production

doctrine to determine if the communication was testimonial—such a communication is testimony in its traditional form, commanding protection under the Fifth

Amendment.

*12 ¶57 Here, Valdez was asked to verbally communicate his passcode to police—a traditional testimonial

statement. So while speaking a passcode and turning

over an unlocked phone may be equivalent in many

respects, they are not the same for Fifth Amendment

purposes. Accordingly, we conclude that the act-of-

30a

production jurisprudence does not apply to the facts

here. There is no need for us to determine whether any

physical act of producing evidence has sufficient testimonial value, as we are dealing with traditional testimony, which would have directly conveyed information to the government.

¶58 Therefore, we agree with the court of appeals that

Valdez’s statement of his passcode to the detective

would have been testimonial under the Fifth Amendment.

II. THE FOREGONE CONCLUSION EXCEPTION

DOES NOT APPLY

¶59 The State next argues that even if Valdez’s statement of his passcode was testimonial, the Fifth

Amendment still did not protect his refusal to provide

the passcode under the foregone conclusion exception.

We disagree with the State’s invocation of the foregone conclusion exception in these circumstances. We

conclude that it applies only in act-of-production

cases.

¶60 The foregone conclusion exception was first articulated by the Supreme Court in Fisher v. United

States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39

(1976). In Fisher, taxpayers under investigation for violations of federal tax laws obtained certain tax documents created by their accountants and subsequently

transferred the documents to their attorneys in light

of the criminal investigation. Id. at 393–94, 96 S.Ct.

1569. After learning the whereabouts of the tax documents, the government subpoenaed the attorneys to

turn them over. Id. at 394, 96 S.Ct. 1569. The taxpayers sought to prevent their attorneys from turning

over the documents, arguing that such action would

31a

violate their Fifth Amendment right against self-incrimination. Id. at 395, 96 S.Ct. 1569.

¶61 In its analysis, the Court first acknowledged that

“[t]he act of producing evidence in response to a subpoena ... has communicative aspects of its own,” including a concession of “the existence of the papers demanded[,] ... their possession or control by the [suspect],” and the suspect’s belief “that the papers are

those described in the subpoena.” Id. at 410, 96 S.Ct.

1569. Accordingly, the act of turning over documents

requested in a subpoena may itself be “testimonial”

under the Fifth Amendment. Id. Nonetheless, on the

facts of Fisher, the Court found it “doubtful that implicitly admitting the existence and possession of the

papers rises to the level of testimony within the protection of the Fifth Amendment.” Id. at 411. The Court

reasoned that because the government already knew

the tax documents existed and that the lawyer possessed the documents, any information regarding the

existence and possession of the documents was “a foregone conclusion” and the act of turning them over

“add[ed] little or nothing to the sum total of the Government’s information ....” Id. In other words, the attorneys’ act of gathering the documents and giving

them to the government did not give the government

any information it did not already have. To the Court,

“[t]he question [was] not of testimony but of surrender.” Id. (cleaned up). Thus, the Court held that while

the act of turning over documents under a subpoena

may have testimonial aspects, on the facts of Fisher,

the surrender of the tax documents was not “testimonial” for Fifth Amendment purposes.

¶62 As the court of appeals noted, the Supreme Court

has only mentioned the foregone conclusion exception

on one other occasion since its introduction in 1976. In

32a

United States v. Hubbell, 530 U.S. 27, 120 S.Ct. 2037,

147 L.Ed.2d 24 (2000), the government subpoenaed a

suspect to turn over different categories of documents

to determine if the suspect had complied with the

terms of a prior plea agreement. Id. at 30–31, 120

S.Ct. 2037. The suspect initially asserted his Fifth

Amendment right against self-incrimination to avoid

disclosing any documents that may have been responsive to the subpoena. Id. at 31, 120 S.Ct. 2037. But the

suspect ultimately complied and turned over a number of documents to the government. Id. Upon review,

the government discovered previously unknown information in the documents, which led to new tax-related

charges against the suspect. Id. at 31–32, 120 S.Ct.

2037. Notably, the government admitted that when it

served the subpoena, it was not investigating the suspect for any tax crimes and was unaware of which documents existed, which documents were in the suspect’s possession, or what information those documents contained. Id. at 32, 120 S.Ct. 2037.

*13 ¶63 First, the Court held that the suspect’s act of

turning over the documents was testimonial, as it relayed to the government information regarding the existence and location of the documents requested by the

government. The Court then referred back to the

“foregone conclusion” language it had used in Fisher,

stating that,

Whatever the scope of this “foregone

conclusion” rationale, the facts of this

case plainly fall outside of it. While in

Fisher the Government already knew

that the documents were in the attorneys’ possession and could independently confirm their existence and

authenticity through the accountants

33a

who created them, here the Government has not shown that it had any

prior knowledge of either the existence or the whereabouts of the ... documents ultimately produced by [the

suspect].

Id. at 44–45, 120 S.Ct. 2037. So unlike in Fisher, the

government in Hubbell had no independent

knowledge of the information it was seeking such that

any information conveyed in the act of production

would have been a foregone conclusion.

¶64 The limited context in which the Supreme Court

has discussed the foregone conclusion exception (or

“foregone conclusion rationale,” as Hubbell put it)

demonstrates its narrow focus. As the court of appeals

stated below, “[t]he [Supreme] Court has never applied the exception outside of the context of assessing

the testimoniality of a nonverbal act of producing documents.” State v. Valdez, 2021 UT App 13, ¶ 42, 482

P.3d 861.

¶65 We agree with the court of appeals. We view the

foregone conclusion exception as being inapplicable

outside of the act-of-production context. Notably, the

Supreme Court has not applied the exception to verbal

statements. And it has not extended its reach beyond

the act-of-production context. Accordingly, we conclude that the foregone conclusion exception does not

apply here.

III. THE STATE’S TRIAL COMMENTARY IS NOT

PERMISSIBLE AS A “FAIR RESPONSE” TO AN

ARGUMENT VALDEZ INITIATED

¶66 Finally, in response to our supplemental briefing

order, the State argues that even if Valdez had a Fifth

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Amendment right to refuse to provide his passcode,

the State nonetheless did not violate Valdez’s rights

by commenting on his silence at trial. It asserts that

such commentary was a fair response to Valdez putting the contents of the phone at issue. We view the

record otherwise.

¶67 The United States Supreme Court has held that

while a defendant’s silence will generally carry no

penalty at trial, the defendant is not allowed to use

their Fifth Amendment silence as a “sword” rather

than a “shield.” United States v. Robinson, 485 U.S.

25, 32, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988) (quoting

United States v. Hasting, 461 U.S. 499, 515, 103 S.Ct.

1974, 76 L.Ed.2d 96 (1983) (Stevens, J., concurring)).

Accordingly, in the trial testimony context, the Court

has stated that “where ... the prosecutor’s reference to

the defendant’s opportunity to testify is a fair response to a claim made by defendant or his counsel,

we think there is no violation of the [Fifth Amendment].” Id.11

*14 ¶68 But, assuming the rationale of Robinson applies here, we cannot say that Valdez unfairly used his

11 In United States v. Robinson, 485 U.S. 25, 108 S.Ct. 864,

99 L.Ed.2d 23 (1988), defense counsel made numerous statements criticizing the government for not giving the defendant a

fair opportunity to explain the actions for which he was being

prosecuted. Id. at 27–28, 108 S.Ct. 864. In response, the prosecutor pointed out that the defendant had the opportunity to tell his

story on the witness stand. Id. at 28, 108 S.Ct. 864. The Supreme

Court concluded that the prosecutor’s commentary was permissible because it “did not treat the defendant’s silence as substantive evidence of guilt, but instead referred to the possibility of

testifying as one of several opportunities which the defendant

was afforded, contrary to the statement of his counsel, to explain

his side of the case.” Id. at 32, 108 S.Ct. 864.

35a

silence as a “sword” and a “shield.” It was the State

that first put the contents of the text messages at issue. In its case in chief, the State introduced evidence

through Jane that Valdez had sent her text messages

to coordinate their meeting.

¶69 And before Valdez raised any issue about the content of the text messages, the State elicited testimony

in its case in chief that the police could not access the

contents of Valdez’s cell phone because he had refused

to provide the passcode. On direct examination, the

prosecutor asked the detective: “[A]re you familiar

with why you were unable to access the data” contained in the phone? After the district court overruled

Valdez’s Fifth Amendment objection to the question,

the detective answered that Valdez “refused to give

me the [passcode] and just told me to destroy the

phone.” It was after this, in his case in chief, that Valdez elicited testimony from his ex-wife characterizing

the text exchange as sexual in nature.

¶70 The State argues that the detective’s testimony

does not implicate the Fifth Amendment because it

was a “mere mention” of Valdez’s refusal to provide

his passcode and not an attempt to use his silence

against him. (Citing State v. Harmon, 956 P.2d 262,

268–69 (Utah 1998).) The State asserts that it did not

use Valdez’s silence against him until its closing,

which occurred after Valdez’s elicitation of his exwife’s testimony regarding the text messages.

¶71 But we agree with the court of appeals that the

import of the detective’s testimony was to suggest that

Valdez should have provided his passcode and was obstructing law enforcement’s investigation by refusing

to do so. State v. Valdez, 2021 UT App 13, ¶ 25, 482

P.3d 861 (“The State implied at trial that Valdez had

36a

an obligation to provide the swipe code to the investigating officers, and that he had no right to refuse.”).

In countering Valdez’s objection to the detective’s testimony, the State did not argue to the district court

that it needed to admit the testimony as a response to

an issue Valdez had raised. Rather, the State pointed

out that the detective had a warrant to search the

phone, and it argued that “[t]he jury ha[d] a right to

know why the officers were unable to access the phone

when there could have been evidence very pertinent

to the case.”

¶72 On these facts, the State’s elicitation and use of

Valdez’s refusal at trial do not constitute a permissible “fair response” to an argument initiated by Valdez.

CONCLUSION

¶73 We hold that verbally providing a cell phone

passcode to law enforcement is testimonial for Fifth

Amendment purposes. Since the disclosure of a

passcode involves traditional oral testimony, the actof-production analysis urged by the State does not apply. And for the same reasons, the foregone conclusion

exception is inapplicable. This exception has been discussed twice by the Supreme Court, and both times,

the case involved the compelled act of producing evidence. The Supreme Court has not extended the exception to cover verbal testimonial statements, and we

see no justification to do so either. Finally, the State

cannot avail itself of the Supreme Court’s “fair response” precedent because, even if such precedent applies, the State elicited testimony about the text messages and Valdez’s refusal to provide his passcode before Valdez put on evidence about the contents of the

text messages on his phone. Accordingly, Valdez did

37a

not use his prior silence as both a “sword” and a

“shield.”

*15 ¶74 We note that the court of appeals found that

the Fifth Amendment violation in this case was not

harmless beyond a reasonable doubt and that Valdez’s

conviction should therefore be vacated. The State has

not challenged those rulings on certiorari.

¶75 We affirm the court of appeals and remand to the

district court for further proceedings in accordance

with this opinion.

At the initial oral argument in this matter, Justice Lee

and Justice Himonas did not sit due to their retirements. District Court Judges John J. Walton and Matthew L. Bell sat.

Following her appointment to the Court, Justice Hagen sat for Judge Matthew L. Bell.

Having recused herself, Justice Pohlman did not participate herein; District Court Judge John J. Walton

sat.

All Citations

--- P.3d ----, 2023 WL 8635197, 2023 UT 26

38a

APPENDIX B

482 P.3d 861

Court of Appeals of Utah.

STATE of Utah, Appellee,

v.

Alfonso Margo VALDEZ, Appellant.

No. 20181015-CA

|

Filed February 11, 2021

Synopsis

Background: Defendant who refused to provide police detective with the passcode to unlock his cell

phone was convicted in the Second District Court, Ogden Department, Joseph M. Bean, J., of kidnapping,

robbery, and aggravated assault, stemming from incident in which he allegedly forced his ex-girlfriend into

a vehicle and attacked her. Defendant appealed.

Holdings: The Court of Appeals, Harris, J., held that:

communicating passcode would have been testimonial, thus triggering Self-Incrimination Clause of

Fifth Amendment;

foregone conclusion exception to testimoniality was

inapplicable;

State utilized defendant’s refusal as invitation for jury

to infer guilt, thus violating privilege against self-incrimination; and

violation of privilege against self-incrimination was

not harmless, thus requiring reversal of convictions.

Reversed and remanded.

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Procedural Posture(s): Appellate Review; PostTrial Hearing Motion; Trial or Guilt Phase Motion or

Objection.

*864 Second District Court, Ogden Department, The

Honorable Joseph M. Bean, No. 171901990.

Attorneys and Law Firms

Emily Adams, Cherise M. Bacalski, and Freyja Johnson, Salt Lake City, Attorneys for Appellant

Sean D. Reyes, Salt Lake City, and John J. Nielsen,

Attorneys for Appellee

Judge Ryan M. Harris authored this Opinion, in

which Judges Gregory K. Orme and Jill M. Pohlman

concurred.

Opinion

HARRIS, Judge:

*865 ¶1 A jury convicted Alfonso Margo Valdez of kidnapping, robbery, and aggravated assault, after his

ex-girlfriend (Ex-Girlfriend) testified that he forced

her into his car with a gun, threatened her, hit her

with the gun, cut her face with a knife, and stole her

purse and phone. Valdez appeals his convictions,

claiming that the trial court incorrectly—and in violation of the Fifth Amendment to the United States Constitution—allowed the State to imply guilt from Valdez’s refusal to provide the swipe code to unlock his

cell phone. Valdez also asserts that his attorney rendered ineffective assistance and that the court improperly excluded a witness’s testimony. We find

merit in Valdez’s Fifth Amendment argument, reverse

his convictions on that basis, and remand for further

proceedings.

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BACKGROUND1

¶2 Valdez and Ex-Girlfriend dated and cohabited for

a time in 2017 and, as Ex-Girlfriend recounted it, their

relationship was a volatile one. She described Valdez

as accusatory and violent, sometimes hitting and

choking her, other times confining her in a locked

room and once beating her so severely that her injuries required hospitalization. After their relationship

ended, Ex-Girlfriend moved out of Valdez’s apartment, but Valdez continued to contact her via phone

and text message. Ex-Girlfriend maintained that, after they parted ways, she largely tried to keep her distance from Valdez but acknowledged that she had

willingly seen him “a couple times” after their

breakup, but before the incident at issue here occurred.

¶3 About two months after their relationship ended,

Valdez sent Ex-Girlfriend a text message telling her

he had some mail to give her and asking her to meet

him. Although Ex-Girlfriend had concerns about

meeting Valdez, she thought it was “nice of him” to

reach out for the purpose of passing along her mail,

and she “had hope” that their meeting “would be decent.” Ex-Girlfriend told Valdez to meet her early one

morning near her workplace after she finished her

night shift. When Valdez pulled up in an SUV, ExGirlfriend approached the passenger side of the vehicle. She later testified that when she leaned into the

open passenger-side window to speak to Valdez, he

1 “When reviewing a jury verdict, we examine the evidence

and all reasonable inferences in a light most favorable to the verdict, reciting the facts accordingly.” State v. Painter, 2014 UT

App 272, ¶ 2, 339 P.3d 107 (quotation simplified).

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pulled out a revolver and told her to get in the car.

Frightened, she complied, and Valdez began driving.

¶4 After Ex-Girlfriend got in the vehicle, Valdez told

her “how stupid [she] was” for agreeing to meet him

before saying, “I hope you have talked to your kids today, because you are not going to get away from me

this time.” Valdez also pulled out a twelve-inch knife,

which he wedged, blade pointed upward, between ExGirlfriend and the vehicle’s center console. Ex-Girlfriend testified that, as Valdez drove, he held the gun

in his left hand, hit her in the head with it, and struck

her “several times in the head and face” with his other

hand. He also demanded that she give him her phone

and purse, which she did, and that she take off her

clothes, a demand she perceived as an attempt to prevent her from escaping. Other than beginning to unlace her shoes, she did not remove her clothing.

¶5 At one point, while the vehicle was stopped, Valdez

dislodged the knife and ran it down Ex-Girlfriend’s

face, cutting her lip. Ex-Girlfriend testified that, soon

thereafter, she went into “survival mode,” and began

attempting to get out of the vehicle, an endeavor Valdez impeded by putting his hand around her throat

and holding on to her hair. Eventually, Ex-Girlfriend

was able to spin out of Valdez’s grip, open the car door,

and exit the vehicle. She then ran toward nearby

houses, first knocking on a door and receiving no answer, and then attempting to flag down a passing vehicle. Finally, Ex-Girlfriend noticed a woman (Witness) standing on a nearby front porch and made her

way toward that house.

¶6 Ex-Girlfriend explained to Witness that she was

trying to escape from Valdez, and that Valdez had a

knife and a gun and was *866 trying to kill her. Ex-

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Girlfriend did not mention any injuries, and Witness

did not see any blood on Ex-Girlfriend. Witness called

the police, and a detective (First Detective) soon arrived and took statements from both Witness and ExGirlfriend. Much of First Detective’s encounter with

Witness and Ex-Girlfriend was recorded on First Detective’s body camera. Witness told First Detective

that she had seen Valdez’s vehicle stop in front of her

house, and she could tell that Valdez and Ex-Girlfriend were arguing but could not see a knife or gun.

During her trial testimony, Witness described watching the vehicle drive a few houses down the street, and

observing Ex-Girlfriend apparently trying to get out

of the vehicle, with her legs hanging out of the car;

from Witness’s vantage point, it appeared that Valdez

was attempting to prevent Ex-Girlfriend from leaving

the vehicle. A few hours later, another detective (Second Detective) interviewed Ex-Girlfriend at the police

station; this interaction was also recorded.

¶7 The next day, police arrested Valdez and seized,

among other things, an Android phone discovered on

his person at the time of his arrest. Police later obtained a warrant to search the phone, but were unable

to access its contents because they did not know the

code to unlock the phone, which in this case was a

“swipe code,” a “nine dot pattern.” According to the officer assigned to try to access the phone’s contents,

this particular phone would “only allow so many attempts” to unlock it “before completely locking you out

of the phone or wiping or resetting the device and losing all of the data.” After obtaining a warrant to

search the phone, officers asked Valdez “for his pass

code” and explained that if he did not provide it then

they would attempt “maneuver[s]” with the phone

that could “destroy[ ]” it. An officer testified that

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Valdez “refused to give [him] the pass code and just

told [him] to destroy the phone.” Officers were ultimately unable to access the phone’s contents.

¶8 After investigation, the State charged Valdez with

aggravated assault, aggravated kidnapping, and aggravated robbery. The case first proceeded to a jury

trial in August 2018, but the court declared a mistrial

when the State’s first witness—Ex-Girlfriend—told

the jury, in contravention of a pretrial order, that Valdez had previously spent time in prison. About two

months later, a new jury was empaneled and a second

trial was held; this trial spanned five trial days and

included testimony from eleven witnesses.

¶9 In the second trial, the State called as its first witness First Detective, who gave a lengthy and detailed

narrative account of his interaction with Ex-Girlfriend at Witness’s house on the day of the incident.

After First Detective offered his observations of ExGirlfriend’s appearance—that she had a small cut on

her top lip and a broken hair clip, but no other apparent injuries—the prosecutor asked him whether ExGirlfriend had “provide[d] any details about how [the]

kidnapping had occurred.” First Detective answered

in the affirmative, and spent the next five transcript

pages describing in narrative fashion what Ex-Girlfriend had said to him about her encounter with Valdez. As First Detective began to describe Ex-Girlfriend’s account of how she escaped from Valdez’s vehicle, Valdez’s attorney lodged a hearsay objection,

stating that First Detective’s testimony may have “fit

within an [exception] up until this point,” but that his

description of her escape from the vehicle was no

longer “showing any effect on this officer and how he

conducted the investigation.” The court overruled the

objection, explained to the jury that the testimony was

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admissible “under a hearsay exception where it tells

us why the officer acted in his investigation the way

he did,” and instructed the jury that First Detective’s

testimony in this vein was not to be considered “for the

truth of the matter asserted.” First Detective then

completed his narrative description of what Ex-Girlfriend had told him, taking another two pages of trial

transcript to do so. First Detective also described his

interaction with Witness, but in much less detail.

¶10 After First Detective’s testimony, Witness and

Ex-Girlfriend testified about the incident, as recounted above. The State also called two additional

police officers, who—among other things—testified

that police were never able to find Ex-Girlfriend’s

phone or any knife, and located only a starter pistol,

*8672 but no actual handgun, during a search of Valdez’s residence.

¶11 The State called Second Detective as its final witness. One of the other officers had already testified

that police were unable to access the contents of Valdez’s phone, but had not described Valdez’s refusal to

provide the swipe code. As Second Detective began describing Valdez’s refusal, Valdez’s attorney objected,

asserting that Valdez had a “Fifth Amendment

[r]ight” not to provide the swipe code, and that the

State should not be able to present any evidence of

Valdez’s refusal to provide it. The court overruled the

objection, and allowed Second Detective to inform the

jury that Valdez “refused to [provide] the passcode

and just told [Second Detective] to destroy the phone.”

2 According to one of the testifying officers, a “starter pistol”

is “a gun that shoots blanks” and is used to ceremonially mark

the start of races; it is not capable of firing actual bullets.

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¶12 The State also asked Second Detective about interviewing Ex-Girlfriend at the police station, and it

played for the jury a video recording of the entire interview. Second Detective testified, without objection,

that he had received training on how to “detect deception” on the part of interviewees, and he explained

that one of his techniques for detecting deception—

and one that he used with Ex-Girlfriend in this case—

was to ask the interviewee to tell his or her story in

reverse. He explained: “If you can remember [your

story] in reverse,” then it is “most likely, in [my] experience and training, ... the truth.” And he further testified that, when he asked Ex-Girlfriend to give her

account in reverse, she was able to do so in a “consistent” manner. On cross-examination, Second Detective acknowledged that, while it took Ex-Girlfriend

forty-five minutes to tell her story chronologically, it

took her only a minute or two to recap her account in

reverse. Valdez’s attorney then asked Second Detective whether that one-minute reverse recap was “sufficient for [him] to validate everything that [Ex-Girlfriend] said,” and Second Detective responded in the

affirmative.

¶13 On redirect examination, the State asked Second

Detective if he expected the reverse telling to be as detailed as the original telling, and he explained that he

did not. The State then asked him for his “assessment”

of Ex-Girlfriend’s testimony, and he stated that he

“believe[d] she was telling [him] the truth,” and that

he reached that conclusion because her “story

matched what she told [First Detective] on-scene,”

“matched what she told [W]itness,” and “was consistent with” the account she gave in “reverse order.”

After a few more questions, the State finished its redirect examination, and the court—without being

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prompted—asked counsel to approach the bench. After a sidebar discussion, the court issued a “corrective

instruction,” explaining to the jury that evidentiary

rules “bar[ ] the admission of ... expert testimony as to

the truthfulness of a witness on a particular occasion,”

and prevent one witness from “vouch[ing] for the credibility of another.” The court struck Second Detective’s

testimony “as far as saying that [Second Detective] believed the alleged victim in this matter was telling the

truth,” and instructed the jury to “disregard ... that

specific part of [Second Detective’s] testimony as far

as his belief that [Ex-Girlfriend] was telling the

truth.” The court also later gave the jury a written instruction, stating as follows: “You are instructed to

disregard the portion of the testimony of [Second Detective] that deals with his opinion of the truthfulness

of the alleged victim in this case.”

¶14 After the State rested, Valdez moved for a mistrial on the basis that Second Detective, in describing

his interview of Valdez, testified that he had read Valdez his Miranda3 rights and that Valdez had thereafter refused to answer further questions. The court denied the motion, but offered to give an instruction informing the jury of a defendant’s right to remain silent. Valdez’s counsel then asked to “amend [his] motion to include ... the statement of [Valdez] failing to

comply with [the officers’] request to provide the code

for the phone.” After hearing argument from the

State, the court stated that “the Fifth Amendment

does not necessarily protect” refusing to “giv[e] a pass

code to a *868 phone,” and that it was “inclined” to

3 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d

694 (1966).

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deny Valdez’s motion. However, the court did not

make a definitive ruling, stating that it would “give

[the matter] some thought” and invite further discussion on the issue “when we do jury instructions.” But

neither the court nor the parties brought the matter

up again, and the court never made a final ruling on

Valdez’s “amend[ed]” motion for mistrial.

¶15 Valdez then called several witnesses of his own,

although he elected not to testify himself. The first

was his ex-wife (Ex-Wife), who lived next door to Valdez, in the same duplex, and shared a wall with him.

During her testimony, Ex-Wife testified that the

apartment walls were thin, and she never heard

screaming, yelling, or any signs of trouble coming

from Valdez’s apartment, even during the time that

Ex-Girlfriend lived with Valdez; this testimony was

corroborated by testimony from Valdez’s daughter,

who lived with Ex-Wife. Ex-Wife also characterized

Ex-Girlfriend as a “guest that never left” and was

“hard to get rid of.” Ex-Wife was acquainted with ExGirlfriend not only because of their common association with Valdez, but also because she and Ex-Girlfriend worked for the same company. Ex-Wife testified

that on the morning of the incident in question, while

both of them were at work, Ex-Girlfriend had shown

her a series of text messages between Valdez and herself that were “sexual” and appeared to indicate that

the two of them wanted to “make[ ] up.”

¶16 Valdez also attempted to call his aunt (Aunt) to

the stand. Aunt was prepared to testify that—contrary to Ex-Girlfriend’s assertions that she largely

avoided Valdez after their breakup—Ex-Girlfriend

had, in fact, often attempted to see Valdez in the

month leading up to the incident. Valdez proffered

that Aunt could testify that, while Valdez was at

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Aunt’s house performing odd jobs after he and ExGirlfriend had broken up, Aunt had seen Ex-Girlfriend parked outside of the house waiting for Valdez,

and that Ex-Girlfriend had done this uninvited. Valdez’s counsel argued that Aunt’s testimony was admissible pursuant to rule 608(c) of the Utah Rules of

Evidence “to establish a bias” and “to establish that

there may be a motive [for Ex-Girlfriend] to misrepresent her testimony of how terrified that she was.”

Counsel made only the rule 608(c) argument, and did

not assert that Aunt’s testimony was admissible as ordinary impeachment evidence. The trial court refused

to allow Aunt to testify, rejecting counsel’s rule 608(c)

argument.

¶17 After Valdez rested, the court instructed the jury.

Valdez asked the court to provide instructions about

lesser-included offenses regarding the aggravated kidnapping and aggravated robbery counts, but did not

ask for a lesser-included-offense instruction with regard to the aggravated assault count. The court instructed the jury as Valdez requested.

¶18 During closing argument, the State emphasized

(among other things) Valdez’s refusal to disclose the

swipe code to his phone, and did so in connection with

an attempt to rebut Ex-Wife’s testimony about the

sexual text messages. Specifically, the prosecutor argued as follows:

Now, you heard [Ex-Wife] say that

she saw some texts. They were going

to get back together and do sexual

things. The State was very interested. You heard testimony from [several] witnesses about the efforts that

were taken to get into [Valdez’s]

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phone to determine what, if any, communication happened between the

two of them. ... The only way [the

State] could get into that phone to see

what these text messages said was by

getting the code from [Valdez]. And

he chose to decline to do that.

....

The [S]tate made and took a lot of effort to see what communications had

gone on between them. Instead of

providing any proof of text messages,

they bring in ... [Ex-Wife] to say that

she, we didn’t have a good relationship with [Ex-Girlfriend], happened

to see the text between them was of a

sexual nature. Think of the motive

she had to lie. Her investment in this

case. Ladies and gentlemen, use your

common sense. Those texts [aren’t4]

here today.

*869 ¶19 At the conclusion of the trial, the jury convicted Valdez of aggravated assault, but declined to

convict him of aggravated kidnapping and aggravated

robbery, instead convicting him of lesser-included offenses, namely, kidnapping and robbery.

ISSUES AND STANDARDS OF REVIEW

¶20 Valdez now appeals, and asks us to consider several issues. We first address Valdez’s assertion that

The record reads, “Those texts (inaudible) here today.”

From context, we infer that the inaudible phrase is “aren’t.”

4

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his rights under the Fifth Amendment to the United

States Constitution were violated when the trial court

allowed Second Detective to testify about Valdez’s refusal to provide the swipe code to his phone, and when

the State argued therefrom that the jury should infer

that there existed no “make up” texts between Valdez

and Ex-Girlfriend. Because Valdez raises a constitutional claim, we review the trial court’s conclusions for

correctness. State v. Maestas, 2012 UT 46, ¶ 95, 299

P.3d 892.

¶21 In addition to his constitutional claim, Valdez

raises several other issues. He claims that his attorney rendered constitutionally ineffective assistance of

counsel in several respects, including when he (a)

failed to object to Second Detective’s testimony pertaining to the veracity of Ex-Girlfriend’s statements,

and (b) failed to object to the length and detail with

which First Detective described the events leading to

his investigation of the incident. And he claims that

the trial court erred by refusing to allow Aunt to testify. Because we find merit in Valdez’s Fifth Amendment argument and reverse on that ground, we need

not reach the merits of these other arguments, although we provide some limited guidance in the hope

it may be useful on remand.

ANALYSIS

I.

¶22 We first address Valdez’s claim that his Fifth

Amendment rights were violated when the State presented evidence that he refused to provide the swipe

code to his cell phone, and then relied on that evidence

in urging the jury to infer that there were no conciliatory and sexual text messages between Valdez and

Ex-Girlfriend. We begin by engaging in a general

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discussion of governing Fifth Amendment legal principles. We then confront the particular question of

whether communicating a cell phone swipe code to law

enforcement is a “testimonial” act protected by the

Fifth Amendment, and conclude that it is. Next, we

analyze the applicability of the so-called “foregone

conclusion exception” to testimoniality, and conclude

that the exception does not apply in this case. We then

determine that the State made more than an innocuous use of the evidence, and that the Fifth Amendment was therefore violated in this case. Finally, we

conclude that the error was not harmless.

A. General Fifth Amendment Principles

¶23 The Self-Incrimination Clause of the Fifth

Amendment to the United States Constitution provides that “[n]o person ... shall be compelled in any

criminal case to be a witness against himself,” and creates a privilege that protects a defendant “against being incriminated by his own compelled testimonial

communications,” Doe v. United States, 487 U.S. 201,

207, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988). This privilege was created “to prevent the use of legal compulsion to extract from the accused a sworn communication of facts which would incriminate him,” as had

been done in historical “ecclesiastical courts and the

Star Chamber,” where inquisitors would “put[ ] the accused upon his oath and compel[ ] him to answer questions designed to uncover uncharged offenses, without

evidence from another source.” Id. at 212, 108 S.Ct.

2341. The amendment “reflects a judgment that the

prosecution should not be free to build up a criminal

case, in whole or in part, with the assistance of enforced disclosures by the accused.” Id. (quotation simplified); see also Estelle v. Smith, 451 U.S. 454, 462,

101 S.Ct. 1866, 68 L.Ed.2d 359 (1981) (noting that the

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government is typically required to gather evidence

through “the independent labor of its officers, not by

the simple, cruel expedient of forcing it from [a suspect’s] own lips” (quotation simplified)).

*870 ¶24 Many communications fall under the ambit

of the Fifth Amendment’s protection, see State v. Gallup, 2011 UT App 422, ¶ 14, 267 P.3d 289, but the

Fifth Amendment does not protect defendants from

disclosures of every kind, see Doe, 487 U.S. at 212, 108

S.Ct. 2341. Rather, the amendment “protects a person

only against being incriminated by his own compelled

testimonial communications.” Id. at 207, 108 S.Ct.

2341 (quotation simplified). Thus, courts have often

stated that communications merit Fifth Amendment

protection only if they share three characteristics: (1)

the communication is compelled, (2) the communication is testimonial, and (3) the communication is incriminating. See Hiibel v. Sixth Judicial Dist. Court,

542 U.S. 177, 189, 124 S.Ct. 2451, 159 L.Ed.2d 292

(2004) (stating that, in order for a communication to

trigger Fifth Amendment protections, it “must be testimonial, incriminating, and compelled”); see also

Commonwealth v. Davis, 220 A.3d 534, 543 (Pa. 2019)

(“To invoke the Fifth Amendment privilege against

the forced provision of information, a defendant must

show (1) the evidence is self-incriminating; (2) the evidence is compelled; and (3) the evidence is testimonial

in nature.”), cert. denied, ––– U.S. ––––, 141 S. Ct.

237, 208 L.Ed.2d 17 (2020).

¶25 In this case—as in several similar cases, see, e.g.,

Doe, 487 U.S. at 207, 108 S.Ct. 2341; Davis, 220 A.3d

at 543—the elements of compulsion and incrimination

are not contested. The State implied at trial that Valdez had an obligation to provide the swipe code to the

investigating officers, and that he had no right to

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refuse. And it has “long been settled that [the Fifth

Amendment’s self-incrimination] protection encompasses compelled statements that lead to the discovery of incriminating evidence even though the statements themselves are not incriminating and are not

introduced into evidence.” United States v. Hubbell,

530 U.S. 27, 37, 120 S.Ct. 2037, 147 L.Ed.2d 24 (2000);

see also id. at 38, 120 S.Ct. 2037 (stating that the Fifth

Amendment protects “against the prosecutor’s use of

incriminating information derived directly or indirectly from the compelled testimony” of the defendant). Thus, even though the State might not have

planned to introduce the actual swipe code into evidence, and even though the code was not itself evidence of a crime, that code could have led to the “discovery of incriminating evidence” on Valdez’s phone,

and therefore is properly categorized as at least indirectly “incriminating” for Fifth Amendment purposes.

See id. at 37–38, 120 S.Ct. 2037.

¶26 In this case, the only contested element is

whether providing the swipe code to officers would

have been “testimonial,” as that term is used in the

Fifth Amendment context. The State contends that it

would not or, at least, that an exception to testimoniality applies here. Valdez, by contrast, contends that

any statement he might have made to police communicating the swipe code to them would have been

testimonial in nature. We proceed to analyze these arguments.

B. Testimoniality

¶27 “[I]n order to be testimonial, an accused’s communication must itself, explicitly or implicitly, relate a

factual assertion or disclose information.” Doe, 487

U.S. at 210, 108 S.Ct. 2341. The “touchstone” used to

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mark whether a communication “is testimonial is

whether the government compels the individual to use

‘the contents of his own mind’ to explicitly or implicitly

communicate some statement of fact.” See In re Grand

Jury Subpoena Duces Tecum Dated March 25, 2011,

670 F.3d 1335, 1345 (11th Cir. 2012) (quoting Curcio

v. United States, 354 U.S. 118, 128, 77 S.Ct. 1145, 1

L.Ed.2d 1225 (1957)); see also Doe, 487 U.S. at 211,

108 S.Ct. 2341 (“It is the extortion of information from

the accused, the attempt to force him to disclose the

contents of his own mind, that implicates the Self-Incrimination Clause.” (quotation simplified)). “Whatever else it may include, the definition of ‘testimonial’

must encompass all responses to questions that, if

asked of a sworn suspect during a criminal trial, could

place the suspect in the cruel trilemma” of “self-accusation, perjury, or contempt.” See Pennsylvania v. Muniz, 496 U.S. 582, 596–97, 110 S.Ct. 2638, 110 L.Ed.2d

528 (1990) (quotation simplified).

¶28 “The most common form” of testimonial communication “is verbal or written communications—the

vast amount of which *871 will fall within the privilege” provided by the Fifth Amendment. Eunjoo Seo v.

State, 148 N.E.3d 952, 955 (Ind. 2020). Indeed, the

United States Supreme Court has made clear that

“[t]here are very few instances in which a verbal statement, either oral or written, will not convey information or assert facts,” and that therefore “[t]he vast

majority of verbal statements thus will be testimonial.” See Doe, 487 U.S. at 213, 108 S.Ct. 2341.

¶29 On the other hand, citizens may be compelled to

take various nonverbal actions without implicating

the Fifth Amendment’s Self-Incrimination Clause. See

In re Grand Jury Subpoena, 670 F.3d at 1345 (stating

that “the Fifth Amendment privilege is not triggered

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where the Government merely compels some physical

act, i.e. where the individual is not called upon to

make use of the contents of his or her mind,” and

where the State’s request amounts to something much

more like a compelled hand-off of “the key to the lock

of a strongbox containing documents”). For instance,

“a suspect may be compelled to furnish a blood sample, to provide a handwriting exemplar or a voice exemplar, to stand in a lineup, and to wear particular

clothing.” Doe, 487 U.S. at 210, 108 S.Ct. 2341 (quotation simplified); see also Hubbell, 530 U.S. at 35, 120

S.Ct. 2037. In instances like these, the government

does not seek access to a suspect’s mind, and the suspect by undertaking the action is “not required to disclose any knowledge he might have, or to speak his

guilt.” See Doe, 487 U.S. at 211, 108 S.Ct. 2341 (quotation simplified). Thus, nonverbal actions are often

considered nontestimonial.

¶30 Likewise, “a person may be required to produce

specific documents even though they contain

incriminating assertions of fact or belief because the

creation of those documents was not ‘compelled’

within the meaning of the [Fifth Amendment] privilege.” Hubbell, 530 U.S. at 35–36, 120 S.Ct. 2037; see

also id. at 36, 120 S.Ct. 2037 (stating that a person

“could not avoid compliance with [a] subpoena served

on him merely because the demanded documents contained incriminating evidence, whether written by

others or voluntarily prepared by himself”). However,

although voluntarily created documents are not themselves protected by the Fifth Amendment, its self-incrimination principles may be implicated when a suspect is asked to participate in the production of such

documents, because “the act of production itself may

implicitly communicate statements of fact” that the

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government may not already know, such as the fact

that the documents “existed, were in his possession or

control, and were authentic.” Id. at 36, 120 S.Ct. 2037

(quotation simplified); see also Muniz, 496 U.S. at 595

n.9, 110 S.Ct. 2638 (explaining that “nonverbal conduct contains a testimonial component whenever the

conduct reflects the actor’s communication of his

thoughts to another”); Fisher v. United States, 425

U.S. 391, 410, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976)

(providing that the “act of producing evidence in response to a subpoena nevertheless has communicative

aspects of its own, wholly aside from the contents of

the papers produced”).

¶31 In his noteworthy dissenting opinion in Doe, Justice Stevens offered an example of the difference between a verbal testimonial communication and a nonverbal nontestimonial action, stating that a person

“may in some cases be forced to surrender a key to a

strongbox containing incriminating documents,” but

that person cannot “be compelled to reveal the combination to his wall safe—by word or deed.” See 487 U.S.

at 219, 108 S.Ct. 2341 (Stevens, J., dissenting). The

majority opinion in Doe agreed with Justice Stevens’s

formulation, stating that it did “not disagree with the

dissent that ‘[t]he expression of the contents of an individual’s mind’ is testimonial communication,” but

held that the act of “compulsion” at issue in that case

“is more like ‘being forced to surrender a key to a

strongbox containing incriminating documents’ than

it is like ‘being compelled to reveal the combination to

[a] wall safe.’ ” Id. at 210, 108 S.Ct. 2341 n.9 (majority

opinion) (quoting id. at 219, 108 S.Ct. 2341 (Stevens,

J., dissenting)). And in Hubbell, in a majority opinion

authored by Justice Stevens, the Supreme Court fully

endorsed the combination safe/strongbox key

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distinction, holding that requiring a suspect to identify and assemble “the hundreds of documents responsive to the requests in [a] subpoena” was testimonial

*872 because it was “like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox.” See Hubbell, 530 U.S. at

43, 120 S.Ct. 2037 (citing Doe, 487 U.S. at 210 n.9, 108

S.Ct. 2341). Thus, according to the United States Supreme Court, a statement—by word or deed—communicating a combination to a wall safe is testimonial,

but the act of handing over a key to a strongbox is nontestimonial. See Davis, 220 A.3d at 547 (“[T]he Supreme Court has made, and continues to make, a distinction between physical production and testimonial

production.”).

¶32 There are several ways in which law enforcement

officers might go about gaining access to a suspect’s

locked cell phone, once a search warrant for that

phone has been procured. Among them are these: (a)

asking the suspect to communicate the access code to

law enforcement officers, or (b) asking the suspect to

personally unlock the phone, whether through biometric means (e.g., a fingerprint) or through entry of

numbers or a swipe pattern, and then turn over the

unlocked phone. In scenario (a), the suspect is asked

to tell the officers what the code is, the officers learn

that code, and may later enter the code into the phone

themselves; in scenario (b), by contrast, the suspect is

not asked to, and does not, communicate the code to

law enforcement officers.

¶33 Scenario (a) is very much akin to revealing the

combination to a wall safe, and is dissimilar from surrendering the key to a strongbox. See Hubbell, 530

U.S. at 43, 120 S.Ct. 2037; Doe, 487 U.S. at 210 n.9,

108 S.Ct. 2341. Indeed, while we are aware of no Utah

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law on this topic, various courts and commentators

have recognized that, by asking a suspect to—orally

or in writing—communicate the actual passcode to a

cell phone, law enforcement officers seek a response

that is testimonial in ways that simply turning over

an unlocked phone is not, because such a request asks

for the code itself. See, e.g., Davis, 220 A.3d at 548 (explaining that “the revealing of a computer password is

a verbal communication, not merely a physical act

that would be nontestimonial in nature,” and that

“one cannot reveal a passcode without revealing the

contents of one’s mind”); United States v. Kirschner,

823 F. Supp. 2d 665, 669 (E.D. Mich. 2010) (noting

that “forcing [a defendant] to reveal the password for

the computer communicates that factual assertion to

the government, and thus, is testimonial—it requires

[a defendant] to communicate ‘knowledge,’ unlike the

production of a handwriting sample or a voice exemplar” (quoting Doe, 487 U.S. at 217, 108 S.Ct. 2341));

see also United States v. Spencer, No. 17-CR-00259CRB-1, 2018 WL 1964588, at *2 (N.D. Cal. Apr. 26,

2018) (stating that “the government could not compel

[the defendant] to state the password itself, whether

orally or in writing,” but holding, on the facts of that

case, that it could compel the defendant to unlock the

phone); State v. Pittman, 367 Or. 498, 510, 479 P.3d

1028 (2021) (stating that “[t]he state could not compel

defendant to reveal the passcode to the phone” because “[r]equiring her to do so would compel her to

make an express verbal or written statement”); Laurent Sacharoff, What Am I Really Saying When I Open

My Smartphone? A Response to Orin S. Kerr, 97 Tex.

L. Rev. Online 63, 68 (2019) (debating whether the

government can compel a suspect to turn over an unlocked phone, and not “whether the government can

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compel a suspect to orally state, or write down, her

passcode,” because “[s]uch compulsion would violate

the Fifth Amendment, as almost everyone including

Kerr agrees”); Wayne R. LaFave et al., 3 Criminal

Procedure § 8.13(a) (4th ed. 2020) (stating that “requir[ing] the subpoenaed party to reveal a passcode

that would allow [the government] to perform the decryption ... would require a testimonial communication standing apart from the act of production”).

¶34 In this case, Second Detective testified that he explained to Valdez that he “had a search warrant” for

the phone and that he “was asking for [Valdez’s] pass

code,” and that Valdez responded by “refus[ing] to give

[Second Detective] the pass code.” We acknowledge

that, during trial, Second Detective was not directly

queried about whether he asked Valdez to provide the

government with the swipe code, or whether he

merely asked Valdez to input the swipe code himself

and hand over the unlocked phone; we also

acknowledge that Second Detective did not *873 specify whether he asked Valdez to provide the swipe code

via verbal description or by writing it down on paper.

Nevertheless, we think the best reading of the record

is that Second Detective asked Valdez to tell him, by

word or deed, what the swipe code was. Second Detective stated that he “asked for” the passcode, and that

Valdez refused “to give [him] the pass code.” We therefore proceed with the understanding that scenario (a),

above, applies here: that the government asked

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Valdez to provide the swipe code itself, and did not

merely ask that Valdez unlock and then hand over his

phone.5

¶35 By making such a request, Second Detective

asked Valdez to make an affirmative verbal statement, whether orally or in writing, that would have

unquestionably been testimonial. To put it in Justice

Stevens’s terms, the government was asking Valdez to

provide the equivalent of “the combination to [his]

wall safe,” a request that asked Valdez to reveal to the

government the “contents of his own mind.” See Doe,

487 U.S. at 210 n.9, 211, 108 S.Ct. 2341 (quotation

simplified). This “verbal statement,” whether it took

oral or written form, would have “convey[ed] information or assert[ed] facts” to the State that it could

have used to further its investigation and prosecution

of Valdez. Id. at 213, 108 S.Ct. 2341 (“The vast majority of verbal statements thus will be testimonial and,

to that extent at least, will fall within the [Fifth

Amendment’s] privilege.”); see also Davis, 220 A.3d at

548. Accordingly, the request the State made of Valdez asked for a response that would have been testimonial in nature.

C. The Foregone Conclusion Exception

¶36 The State does not strenuously resist the conclusion that the statement Valdez was asked to make

was, at least to some degree, testimonial. Instead, it

asserts that, even if the requested statement could be

considered to have testimonial aspects, Fifth Amendment protections do not apply; the State contends that

5 Because the facts of this case fall within scenario (a), we

apply the law to those facts, and express no opinion as to the outcome of a case that might later arise under scenario (b).

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the statement Valdez was asked to make had “minimal testimonial significance” because the things the

statement would have revealed were “foregone conclusions.” Stated another way, the State, citing Fisher,

425 U.S. at 410–13, 96 S.Ct. 1569, invokes what it refers to as the “foregone conclusion exception” to testimoniality. In our view, the State misperceives the

reach of this exception.

¶37 In Fisher, the Supreme Court was not concerned

with a verbal communication. Id. at 409, 96 S.Ct. 1569

(analyzing the testimoniality of the act of responding

to “a documentary summons”). As noted, verbal statements almost always “convey information or assert

facts” and are nearly always “testimonial.” See Doe,

487 U.S. at 213, 108 S.Ct. 2341. But when the communication in question is the act of producing documents

or other tangible goods, the question of testimoniality

becomes much closer. See Fisher, 425 U.S. at 410–13,

96 S.Ct. 1569. As the Fisher court noted, even an act

of production might have “communicative aspects of

its own, wholly aside from the contents of the papers

produced,” such as, for instance, conceding “the existence of the papers demanded and their possession or

control by” the subpoenaed party. Id. at 410, 96 S.Ct.

1569.

¶38 But on the facts of Fisher, the Court determined

that the communicative aspects of the act of production required of the subpoenaed party were too insignificant to warrant Fifth Amendment protection. In

reaching that conclusion, the Court noted that, while

the party’s act of producing the documents would reveal the existence of the documents as well as the fact

that copies of them were in the party’s custody, those

pieces of information were “a foregone conclusion and

... add[ed] little or nothing to the sum total of the

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[g]overnment’s information.” Id. at 411, 96 S.Ct. 1569.

In Fisher, the government already knew exactly which

documents it was seeking, and it already knew that

the subpoenaed party possessed them. Id. at 393–94,

96 S.Ct. 1569. Thus, the party’s act of producing the

documents would reveal nothing to the government

that it did not already know, and therefore the Court

held that the party’s “Fifth Amendment privilege

[was] not violated *874 because nothing [the party]

has said or done is deemed to be sufficiently testimonial.” Id. at 411, 96 S.Ct. 1569.

¶39 After Fisher, the Supreme Court has mentioned

the foregone conclusion exception only once more, in

Hubbell, again in the context of assessing the testimoniality of an act of producing documents. See 530 U.S.

at 43–45, 120 S.Ct. 2037. This time, the Court found

the concept inapplicable, stating that “[w]hatever the

scope of this ‘foregone conclusion’ rationale, the facts

of this case plainly fall outside of it,” because the government had “not shown that it had any prior

knowledge of either the existence or the whereabouts”

of the documents it sought. Id. at 44–45, 120 S.Ct.

2037.

¶40 Since Hubbell, lower courts have taken various

approaches in their application of the foregone conclusion exception. Some courts and commentators have

been reluctant to expand the scope of the exception,

given the Supreme Court’s own apparent view that

the exception is limited. See, e.g., Garcia v. State, 302

So. 3d 1051, 1056–57 (Fla. Dist. Ct. App. 2020), review

granted, No. SC20-1419, 2020 WL 7230441 (Fla. Dec.

8, 2020); G.A.Q.L. v. State, 257 So. 3d 1058, 1065–66

(Fla. Dist. Ct. App. 2018) (Kuntz, J., concurring); State

v. Andrews, 243 N.J. 447, 234 A.3d 1254, 1287–88

(2020) (LaVecchia, J., dissenting), petition for cert.

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filed, No. 20-937 (Jan. 7, 2021); Davis, 220 A.3d at

548–49; see also LaFave, 3 Criminal Procedure §

8.13(a) (stating that “requir[ing] the subpoenaed

party to reveal a passcode that would allow [the government] to perform the decryption ... would require a

testimonial communication standing apart from the

act of production, and therefore make unavailable the

foregone conclusion doctrine”). These authorities emphasize the fact that, in both Fisher and Hubbell—the

only times the Supreme Court has mentioned the foregone conclusion exception—the Court was analyzing

the testimoniality of an act of production of documents, and not the testimoniality of a verbal statement. In Davis, for instance, the Pennsylvania Supreme Court described the “foregone conclusion gloss

on a Fifth Amendment analysis” as “an extremely limited exception” to Fifth Amendment self-incrimination

principles, and noted that the Supreme Court had

“never applied or considered the foregone conclusion

exception” outside the context of analyzing the testimoniality of the act of producing “business and financial records.” See 220 A.3d at 549; see also G.A.Q.L.,

257 So. 3d at 1066 (Kuntz, J., concurring) (noting that

“[t]he foregone conclusion exception has not been applied to oral testimony,” and viewing the exception as

“inapplicable to the compelled oral testimony sought

in this case”); Andrews, 234 A.3d at 1287–88 (LaVecchia, J., dissenting) (disagreeing with an approach

that would “expansively apply” the foregone conclusion cases “to force disclosure of the contents of one’s

mind,” and instead urging the court to “adhere to the

[Supreme] Court’s bright line: [that] the contents of

one’s mind are not available for use by the government

in its effort to prosecute an individual”). According to

these authorities, the foregone conclusion concept

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simply does not apply when assessing the testimoniality of a verbal communication, such as a statement

conveying a cell phone passcode to the government.

¶41 Other courts and commentators have taken a different approach, and have proceeded to analyze, on

the merits, the applicability of the foregone conclusion

exception to situations in which a suspect is forced to

disclose the passcode to a cell phone. See, e.g., Andrews, 234 A.3d at 1273 (referring to a statement communicating a passcode as “a testimonial act of production,” and proceeding to analyze, on the merits,

whether the foregone conclusion exception applied to

the facts of the case); Davis, 220 A.3d at 553–57 (Baer,

J., dissenting) (referring to “the compulsion of [the

suspect’s] password” as “an act of production,” and

urging the court to conclude that “the foregone conclusion exception may potentially apply to cases involving the compelled disclosure of a computer password”). These authorities appear to recognize that the

foregone conclusion exception has been applied by the

Supreme Court only in the context of analyzing the

testimoniality of acts of production of documents, but

they nevertheless conclude that the act of communicating one’s passcode to the government falls into the

category of an “act of production.”

*875 ¶42 We find the more limited approach to be

more consistent with governing, binding case law. No

Utah appellate court has considered the reach of the

foregone conclusion exception. And because the exception is a Fifth Amendment construct, the cases from

the United States Supreme Court—the last word as to

the meaning and scope of the federal constitution—

are binding. That Court, as noted, has not mentioned

the foregone conclusion exception in over two decades,

when the Court referred to it simply as “this ‘foregone

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conclusion’ rationale,” and noted that “whatever [its]

scope ..., the facts of this case plainly fall outside of it.”

See Hubbell, 530 U.S. at 44, 120 S.Ct. 2037. The Court

has never applied the exception outside of the context

of assessing the testimoniality of a nonverbal act of

producing documents. See id.; see also Fisher, 425 U.S.

at 411–12, 96 S.Ct. 1569. Yet the Court’s instruction

regarding the testimoniality of verbal statements, as

well as the strongbox key/safe combination illustration, appear to be as robust as ever. See, e.g., Davis,

220 A.3d at 547–49 (describing the strongbox key example from Doe, and concluding that “prohibition of

application of the foregone conclusion rationale to areas of compulsion of one’s mental processes” as opposed to acts of production “would be entirely consistent with the Supreme Court decisions, surveyed

above, which uniformly protect information arrived at

as a result of using one’s mind”).

¶43 Moreover, given the vintage of the foregone conclusion cases, and the fact that the Supreme Court issued Fisher decades before cell phones were in widespread use, we have our doubts about whether the Supreme Court would extend the foregone conclusion

concept to verbal statements that convey to the government the passcode to a modern cell phone. Such

devices “could just as easily be called cameras, video

players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” Riley v. California, 573 U.S. 373, 393, 134 S.Ct.

2473, 189 L.Ed.2d 430 (2014); see also United States v.

Djibo, 151 F. Supp. 3d 297, 310 (E.D.N.Y. 2015) (noting that a modern smartphone can contain, in digital

form, the “combined footprint of what has been occurring socially, economically, personally, psychologically, spiritually, and sometimes even sexually, in the

66a

owner’s life”). And in a pair of recent cases, the Supreme Court has expressed hesitancy in applying analog-era legal rules to our fast-paced cell-phone-centric digital world. See, e.g., Carpenter v. United States,

––– U.S. ––––, 138 S. Ct. 2206, 2222, 201 L.Ed.2d 507

(2018) (noting that when “confronting new concerns

wrought by digital technology,” the Court “has been

careful not to uncritically extend existing precedents,”

and in that case refusing to extend the “third-party

doctrine” to “cell-site location information”); Riley, 573

U.S. at 401–02, 134 S.Ct. 2473 (refusing to extend the

search-incident-to-arrest exception to the warrant requirement to cell phones found on arrestees); see also

Eunjoo Seo v. State, 148 N.E.3d 952, 961–62 (Ind.

2020) (determining that the foregone conclusion exception did not apply to the facts of the case, in part

because of doubt about whether the Supreme Court,

in light of Carpenter and Riley, would extend the exception to apply to modern cell phones).

¶44 Accordingly, we conclude that the foregone conclusion exception has no potential application here,

where Valdez was asked to provide his swipe code to

Second Detective, and was not merely asked to turn

over an unlocked phone.6 Valdez’s verbal response—

6 Even if we were to conclude that the foregone conclusion

exception could apply to verbal statements, or that Valdez’s

statement was an act of production to which the exception could

conceivably apply, it would not necessarily follow that the facts

of this case fit within the exception’s ambit. Courts and commentators are deeply split about which conclusions must be clear and

foregone in order for the exception to apply. Some have concluded

that the exception applies only if the government can show that

it already knew, prior to requesting access to the cell phone, exactly which limited set of documents it was seeking and that

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those documents were to be found on the phone. See, e.g., In re

Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670

F.3d 1335, 1346 (11th Cir. 2012) (concluding that the foregone

conclusion exception did not apply where the government could

not show that it knew “whether any files exist and are located on

the hard drives”); People v. Spicer, 430 Ill.Dec. 268, 125 N.E.3d

1286, 1291 (Ill. App. Ct. 2019) (“We consider that the proper focus

is not on the passcode but on the information the passcode protects.”); Eunjoo Seo v. State, 148 N.E.3d 952, 957–58 (Ind. 2020)

(holding that, “unless the State can show it already knows” not

only that “the suspect knows the password” but also that “the

files on the device exist” and that “the suspect possessed those

files,” then “the communicative aspects of the production fall

within the Fifth Amendment’s protection”); Laurent Sacharoff,

What Am I Really Saying When I Open My Smartphone? A Response to Orin S. Kerr, 97 Tex. L. Rev. Online 63, 68 (2019) (arguing that “[e]ntering the password to open the device is analogous to the physical act of handing over the papers” and that,

therefore, “the foregone conclusion doctrine should apply to the

files on the device” if the government can “show it already knows

they exist and the defendant possesses them”). Others have concluded that, in order to avail itself of the exception, the government need demonstrate only that it already knew that the suspect knows the password. See, e.g., State v. Andrews, 243 N.J.

447, 234 A.3d 1254, 1273 (2020) (concluding that “the foregone

conclusion test applies to the production of the passcodes themselves, rather than to the phones’ contents”), petition for cert.

filed, No. 20-937 (Jan. 7, 2021); State v. Pittman, 367 Or. 498,

526–27, 479 P.3d 1028 (2021) (concluding that “[t]he testimonial

information that the act [of production] communicates ... does not

include information about the phone’s content,” and “what the

state must demonstrate it already knows” is merely that “the defendant knows the phone’s passcode”); Orin S. Kerr, Compelled

Decryption and the Privilege Against Self-Incrimination, 97 Tex.

L. Rev. 767, 783 (2018) (opining that “when investigators present

a suspect with a password prompt, and they obtain an order compelling the suspect to enter in the correct password, the suspect

cannot have a valid Fifth Amendment privilege if the government independently can show that the suspect knows the password”). But because Valdez was asked to provide the actual swipe

68a

whether *876 oral or written—to Second Detective’s

request would have been testimonial in nature, in that

it would have conveyed to the government information

contained in Valdez’s mind, namely, the pattern of his

swipe code. And as already stated, it is not contested

here that the statement may have been at least indirectly incriminating, and that the State implied at

trial that Valdez had an obligation to provide the

swipe code. Thus, all three prerequisites for Fifth

Amendment protection are present here: compulsion,

testimoniality, and self-incrimination.

D. The State’s Use of the Evidence

¶45 “The mere mention” of a defendant’s decision to

remain silent, however, does not violate that defendant’s constitutional rights. State v. Saenz, 2016 UT

App 69, ¶ 10, 370 P.3d 1278 (quotation simplified). Instead, what the Fifth Amendment forbids is “either

comment by the prosecution on the accused’s silence

or instructions by the court that such silence is evidence of guilt.” Griffin v. California, 380 U.S. 609, 615,

85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). That is, in order

for Valdez’s constitutional rights to have been violated

in this instance, the State must have used Valdez’s silence to “undermine the exercise of those rights guaranteed” by the Constitution. See Saenz, 2016 UT App

69, ¶ 10, 370 P.3d 1278 (quotation simplified). Indeed,

code and was not merely asked to provide an unlocked phone,

and because we have determined that the exception cannot apply

to verbal statements seeking the contents of one’s mind, we need

not—and unlike some other courts, see Commonwealth v. Davis,

220 A.3d 534, 550 n.9 (Pa. 2019), cert. denied, ––– U.S. ––––, 141

S. Ct. 237, 208 L.Ed.2d 17 (2020), we elect not to—take a position

on the further applicability of the exception to the facts of this

case.

69a

as we have previously recognized, “the evil to be

avoided in this context” is not the mere mention of a

defendant’s invocation of the right to remain silent

but, rather, “the implication that such silence is evidence of guilt.” Id. (quotation simplified). The trial

court did not discuss this next analytical step; indeed,

its decision to allow Second Detective to testify about

Valdez’s refusal to provide the passcode appears to

have been based on a belief that such refusal is not

protected by the Fifth Amendment at all. If a statement (or refusal to make a statement) does not enjoy

Fifth Amendment protection, the prosecution can use

the statement or refusal to imply guilt without offending the Fifth Amendment, and in such cases the court

need not in this context analyze the uses to which the

prosecution puts such evidence. However, because we

have determined that Valdez’s refusal to provide the

passcode does enjoy Fifth Amendment protection, we

must proceed to assess whether the State used that

evidence to imply Valdez’s guilt.

¶46 Here, the State did more than merely mention

Valdez’s refusal to provide the swipe code. One of Valdez’s main defenses was his claim—supported by ExWife’s trial testimony—that *877 his encounter with

Ex-Girlfriend had been friendly rather than adversarial, and had been preceded by a sexually charged text

message exchange discussing reconciliation. During

its closing argument, the State attempted to rebut this

defense by pointing out that no such text messages

were in evidence, and by urging the jury to disbelieve

Ex-Wife’s account of the text messages she claimed to

have seen. In so doing, the State described the “efforts

that were taken to get into [Valdez’s] phone to determine what, if any, communication happened between”

him and Ex-Girlfriend, and noted that Valdez had

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been given an opportunity to allow officers to access

his cell phone—on which such messages could presumably be found—and that he “chose to decline to”

provide the passcode.7

¶47 In its closing narrative, the State quite clearly invited the jury to draw an inference of guilt from Valdez’s silence. And even “[i]ndirect references to a defendant’s failure to testify are constitutionally impermissible if the comments were manifestly intended to

be or were of such a character that the jury would naturally and necessarily construe them to be a comment

on the defendant’s failure to testify.” State v. Tillman,

750 P.2d 546, 554 (Utah 1987). In this vein, the Utah

Supreme Court has declared that “a prosecutor commits constitutional error” by making a statement that

is “of such character that a jury would naturally and

necessarily construe it to amount to a comment on the

failure of the accused” to speak. State v. Nelson-Waggoner, 2004 UT 29, ¶ 31, 94 P.3d 186 (quotation simplified).

¶48 In sum, Valdez had a Fifth Amendment right to

refuse to provide the swipe code to investigating officers, and during trial the State invited the jury to draw

7 At oral argument, the State asserted that, even if it was not

permitted to comment on Valdez’s silence, it was permitted to

emphasize Valdez’s additional statement that officers should

“destroy the phone.” On the record before us, we disagree. As an

initial matter, Valdez’s statement about destroying the phone

was made in connection with stating his refusal to provide the

passcode, and therefore commentary about Valdez’s statement

about destroying the phone would have necessarily implicated

Valdez’s exercise of his right to silence. And in any event, the

State in closing argument did not emphasize Valdez’s statement

about destroying the phone; instead, it emphasized Valdez’s

choice to decline to provide officers the passcode.

71a

an inference of guilt from Valdez’s silence. This action

was no “mere mention” of Valdez’s decision to withhold the swipe code. See Saenz, 2016 UT App 69, ¶ 10,

370 P.3d 1278 (quotation simplified). In this context,

the State’s evidentiary use of Valdez’s refusal to provide the swipe code violated Valdez’s rights under the

Fifth Amendment, and the trial court erred by allowing such evidence to come in and by allowing the State

to use it in this manner.

E. Harmless Error

¶49 But not “all federal constitutional errors, regardless of their nature or the circumstances of the case,

require reversal of a judgment of conviction.” Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct.

1431, 89 L.Ed.2d 674 (1986). And “in the context of a

particular case, certain constitutional errors, no less

than other errors, may have been ‘harmless.’ ” Id.

However, when the error in question is “constitutional

in nature, ... its harmlessness is to be judged by a

higher standard.” See State v. Villarreal, 889 P.2d 419,

425 (Utah 1995) (quotation simplified). Under that

higher standard, “reversal is required unless the error

is harmless beyond a reasonable doubt,” State v.

Drommond, 2020 UT 50, ¶ 105, 469 P.3d 1056 (quotation simplified), and—at least for preserved claims of

constitutional error—“the burden to demonstrate

harm [or lack thereof] ... shifts from the defendant to

the State when a constitutional error is alleged,” see

State v. Bond, 2015 UT 88, ¶ 37, 361 P.3d 104; see also

Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824,

17 L.Ed.2d 705 (1967) (stating that “constitutional error ... casts on someone other than the person prejudiced by it a burden to show that it was harmless”).

72a

¶50 Under this harmless error standard, we must attempt to “determine the probable impact of the testimony on the minds of the average juror.” Drommond,

2020 UT 50, ¶ 105, 469 P.3d 1056 (quotation simplified). In undertaking this inquiry, we *878 “evaluate

several factors,” including “the importance of the witness’s testimony in the prosecution’s case, whether

the testimony was cumulative, the presence or absence of evidence collaborating or contradicting the

testimony of the witness on material points, the extent

of cross-examination permitted, and, of course, the

overall strength of the prosecution’s case.” Id. (quotation simplified). If we “may confidently say, on the

whole record, that the constitutional error was harmless beyond a reasonable doubt,” then the conviction

will be affirmed despite the error. See State v. Maestas, 2012 UT 46, ¶ 56, 299 P.3d 892 (quotation simplified). On the other hand, “we cannot declare federal

constitutional error harmless unless we sincerely believe that it was harmless beyond a reasonable doubt.”

See State v. Genovesi, 909 P.2d 916, 922 (Utah Ct.

App. 1995) (quotation simplified); see also Drommond,

2020 UT 50, ¶ 105, 469 P.3d 1056 (stating that “reversal is required unless the error is harmless beyond a

reasonable doubt” (quotation simplified)).

¶51 Under the circumstances presented here, the

State has not carried its burden of demonstrating that

its improper use of evidence that Valdez refused to

provide his swipe code was harmless beyond a reasonable doubt. Valdez’s chief defense to the charges was

that the entire encounter with Ex-Girlfriend had not

been a kidnapping or an assault, but instead had been

voluntary on her part, and even a mutual effort toward reconciliation. And Ex-Wife’s testimony describing sexually charged text messages between Ex-

73a

Girlfriend and Valdez on the morning of the incident

was an important part of Valdez’s defense. Indeed, the

State recognized the importance of Ex-Wife’s testimony by discussing it—and attempting to rebut it—

during closing argument by arguing that Valdez’s refusal to provide the swipe code indicated that no such

text messages existed. See State v. Ellis, 2018 UT 2, ¶

43, 417 P.3d 86State v. Ellis, 2018 UT 2, ¶ 43, 417 P.3d

86 (stating that one factor leading to the conclusion

that the admission of the evidence was not harmless

was that “[t]he prosecution emphasized [it] during

closing argument”).

¶52 And while the prosecution’s case was certainly

supported by some persuasive evidence, we do not consider its case to have been so overwhelming as to render the error harmless beyond a reasonable doubt. ExGirlfriend’s testimony was corroborated, in part, by

Witness’s account, especially Witness’s perception

that Valdez had been attempting to prevent Ex-Girlfriend from leaving the vehicle. But other portions of

Ex-Girlfriend’s testimony were unsupported by other

evidence. Indeed, the physical evidence pointed to a

more minor altercation than the one Ex-Girlfriend reported. Ex-Girlfriend had a broken hair clip and a

small cut on her lip, but no other signs of injury. Additionally, officers never found Ex-Girlfriend’s phone,

an actual handgun, or any knife, and Witness did not

see a knife or a gun or any assault in her observations

of the incident.

¶53 Given the total evidentiary picture presented

here, we have reasonable doubt about whether the improperly admitted evidence made a difference in the

outcome of this case. Accordingly, the State has not

carried its burden of demonstrating that the error was

harmless beyond a reasonable doubt. On this basis, we

74a

reverse Valdez’s conviction and remand for further

proceedings, including potentially a new trial.

II.

¶54 Valdez also raises a number of additional claims

on appeal. First, he argues that his attorney rendered

ineffective assistance of counsel in several respects,

including the following: by failing to object to Second

Detective’s testimony opining on the veracity of ExGirlfriend’s statements, and by failing to object to the

length and detail of First Detective’s narrative of the

incident. Second, Valdez asserts that the trial court

erred when it excluded Aunt’s testimony. Because we

reverse and remand for a new trial solely on the basis

of the Fifth Amendment violation discussed above, we

need not reach a decision on the merits of Valdez’s

other arguments. But we are troubled by certain aspects of how the trial proceeded and, in an effort to

offer guidance that might be useful on remand, where

these issues are likely to arise again, we briefly discuss some of Valdez’s other arguments. See, e.g., State

v. Low, 2008 UT 58, ¶ 61, 192 P.3d 867 (although reversing on another ground and remanding *879 for

new trial, nevertheless proceeding to comment on

“other issues presented on appeal that will likely arise

during retrial”).

¶55 The testimony the State elicited from Second Detective regarding his opinion of the veracity of Ex-Girlfriend’s statements was improper and inadmissible

“vouching” testimony, and the trial court was correct

to step in, of its own accord, and strike that testimony.

Our law “prohibits any testimony as to a witness’s

truthfulness on a particular occasion.” See State v.

Rimmasch, 775 P.2d 388, 391 (Utah 1989), superseded

in part by rule as stated in State v. Maestas, 2012 UT

75a

46, ¶ 121 n.134, 299 P.3d 892. And in our view, these

principles would have applied not only to Second Detective’s testimony that he believed Ex-Girlfriend was

telling the truth, but also to his claims regarding his

status as a sort of human lie detector, including his

description of the techniques he employed in his efforts to ferret out lies. While we stop short of making

any determination that Valdez’s counsel rendered ineffective assistance8 in not objecting to Second Detective’s testimony in this regard, we note the impropriety of that testimony.

¶56 In addition, we are concerned about the State’s—

and the trial court’s—conception of the scope of the socalled “police investigation exception” to the usual ban

on hearsay testimony. In State v. Collier, 736 P.2d 231

(Utah 1987), our supreme court held that a police officer was allowed to testify that a confidential informant had told him, prior to a raid on a house, that an

occupant was “armed and would not be taken alive.”

Id. at 233 (quotation simplified). The court held that

this brief testimony, though consisting of another declarant’s out-of-court statement that might otherwise

be considered hearsay, was admissible because it “was

not admitted to prove the truth of the information”—

that the occupant of the house was in fact armed and

refused to be taken alive—but “rather to explain the

conduct of the police in setting up an armed stakeout

8 To establish ineffective assistance of counsel, Valdez would

have to show that his attorney’s representation “fell below an objective standard of reasonableness” and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland

v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984).

76a

of the [house].” Id. at 234. Other jurisdictions have

likewise recognized that limited statements made by

other declarants, and offered by testifying police officers, that serve to explain why police acted in a particular way may constitute admissible non-hearsay because the statements are not offered for the truth of

the matter asserted. See, e.g., Jones v. Basinger, 635

F.3d 1030, 1044–45 (7th Cir. 2011) (stating that “an

informant’s out-of-court statement to law enforcement

is not hearsay if that statement is offered into evidence as an explanation of why the subsequent investigation proceeded as it did” (quotation simplified)).

But courts and commentators have noted that this

hearsay “exception” carries the potential for abuse.

See, e.g., id. at 1046 (stating that “statements offered

to show ‘background’ or ‘the course of the investigation’ can easily violate a core constitutional right, are

easily misused, and are usually no more than minimally relevant,” and urging courts “asked to admit

such statements for supposed non-hearsay purposes”

to be “on the alert for such misuse”); United States v.

Cass, 127 F.3d 1218, 1222–23 (10th Cir. 1997) (noting

that the McCormick on Evidence treatise has “criticized the ‘apparently widespread abuse’ of [the police

investigation exception],” and stating that proper use

of the exception “involve[s] the admission of, at most,

only a few limited statements” and not “scores of outof-court statements”). While we do not purport to here

set forth the precise parameters of the police investigation exception in Utah, or to decide whether Valdez’s counsel performed deficiently under these circumstances by lodging a tardy objection to First Detective’s testimony, it is our view that the entirety of

First Detective’s lengthy narrative testimony about

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what Ex-Girlfriend told him was not admissible under

that exception.

¶57 Finally, we make brief mention of Valdez’s assertion that Aunt should have been allowed to testify. On

appeal—but not before the trial court—Valdez argues,

citing State v. Thompson, 2014 UT App 14, ¶ 29, 318

P.3d 1221 (stating that rule 608(b) does not bar *880

“evidence used to directly rebut a witness’s testimony

or other evidence”), that Aunt’s testimony should have

been allowed as ordinary impeachment evidence, admissible to rebut Ex-Girlfriend’s claim that she had

largely attempted to avoid Valdez following their

breakup. However, Valdez failed to make that argument before the trial court, arguing only that Aunt’s

testimony was admissible pursuant to rule 608(c).

Both because this claim is unpreserved, and because

we need not reach its merits in any event, we do not

opine as to the ultimate admissibility of Aunt’s testimony. But the argument is one that should be addressed on remand, should Valdez renew it there.

CONCLUSION

¶58 Valdez’s Fifth Amendment rights were violated

when the trial court allowed Second Detective to testify about Valdez’s refusal to provide the State his cell

phone passcode, and the State argued, in turn, that

the jury should infer from Valdez’s refusal that no reconciliatory texts between Valdez and Ex-Girlfriend

existed. Because the State impermissibly invited the

jury to interpret Valdez’s silence as an inference of his

guilt, and because this error was not harmless beyond

a reasonable doubt, we reverse and remand for further

proceedings in accordance with this opinion.

78a

All Citations

482 P.3d 861, 2021 UT App 13

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APPENDIX C

IN THE SECOND JUDICIAL DISTRICT COURT

WEBER COUNTY, STATE OF UTAH

______________________

Case No. 171901990

STATE OF UTAH, PLAINTIFF

vs.

ALFONSO MARGO VALDEZ, DEFENDANT

_______________________

REPORTER’S TRANSCRIPT

JURY TRIAL

OCTOBER 19, 2018

__________________________

BEFORE THE HONORABLE JOSEPH BEAN

SECOND DISTRICT COURT

WEBER COUNTY COURTHOUSE

OGDEN, UTAH

Transcribed by: RUSSEL D. MORGAN

APPEARANCES

For the Plaintiff:

MICHELLE A. JEFFS

RACHEL M. SNOW

Weber County Attorney’s Office

For the Defendant:

SHAWN C. CONDIE

Attorney at Law

80a

***

[375]

Q

Small.

A So, we have the 30th. This is the date right here.

This is the time. These are the seconds, the duration

of the call. Whether they are outgoing or incoming.

And the phone number that is making the phone call

and the phone call that it is calling right there.

Q Thank you, Detective Haney. Does the sheriff's

office have the ability to search the data on a phone?

A

Yes.

Q

Who performs the search?

A

Detective Cameron Hartman.

Q And we heard from Detective Hartman earlier in

this trial, correct?

A

Yes.

Q Was the phone that you seized from the defendant's pocket searched?

A No. We were unable to gain access to the data inside the phone.

Q And are you familiar with why you were unable to

access the data?

A

Yes.

Q

Why is that?

A We needed a pass code to get inside the phone, a

security pass code. And also -MR. CONDIE:

Your [376] Honor?

Your Honor, can we approach,

81a

THE COURT: Yes.

(Whereupon a bench conference was held on the record.)

MR. CONDIE: I don't know where he's going but

I know that the state has tried to obtain his pass code

from him. And he's refused to do so. I think that's a

Fifth Amendment Right he has to not provide information. I think that they can testify that they tried to

get the pass code, they couldn't get the pass code, they

tried but couldn't.

(Inaudible) testimony that they asked the defendant

(Inaudible.)

MS. SNOW: A warrant was obtained for the pass

code. Detective Haney served the warrant on the defendant. And he refused to give the pass code. The

jury has a right to know why the officers were unable

to access the phone when there could have been evidence very pertinent to the case.

THE COURT: I'm going to overrule the objection

for this reason. There are a lot of times when people

refuse to answer questions and the officer has the right

to say this person invoked their Fifth Amendment

Right or this person asked for an attorney. And instead of answering the questions. It happens. We get

that all the time. I don't think that's a an unusual scenario of circumstance.

MR. CONDIE: Whether or not they think it's a

[377] violation of his rights.

THE COURT: I understand.

MR. CONDIE: I just need to make a record.

THE COURT: Court will overrule the objection.

82a

BY MS. SNOW:

Q Detective Haney, you were explaining why you

were unable to access the phone?

A We didn't have the pass code to get into the phone.

It was a swipe pattern. And we did not have that pattern.

Q

Did you obtain a warrant to search the phone?

A

Yes, I did.

Q Did you speak with the defendant about the pass

code?

A

Yes, I did.

Q

And what did he say when you spoke with him?

A Well, I explained to him that I had a searchwarrant and that I was asking for his pass code, otherwise we were going to have to attempt to chip off, maneuver that you send down to the lab at Dixie laboratories. And it destroys the phone.

Q

And how did he respond?

A He refused to give me the pass code and just told

me to destroy the phone.

Q And were you able to access the phone at any [378]

point?

A

No.

Q Thank you.

time.

I have no further questions at this

THE COURT: Mr. Condie, cross-examination?

MR. CONDIE: Yes, Your Honor.

83a

CROSS-EXAMINATION

BY MR. CONDIE:

Q Detective Haney, we've got some things to cover.

I'll try to be brief and concise and move around. You

testified about quite a bit in your direct with the state.

I would like to go back to your interview with Miss

Burcham. During your interview with Miss Burcham,

when asked by the state if she appeared to be consistent with everything that you had known about the

case prior to and afterwards, and did you answer yes

she was?

A

Yes.

Q Did you find anything about her, in her interview

that was inconsistent with what you or other officers

uncovered through your investigation in the case?

A

No.

Q Did she provide you with any information at all

whether you found it ultimately relevant or not that

you found to be factually inaccurate?

A

No.

***

[479]

THE COURT: All right. Thank you. Court will

be in recess.

MS. SNOW: When would you like us back?

(Whereupon, a lunch recess was taken.)

THE COURT: We are back on the record in the

case of State of Utah vs. Alfonso Margo Valdez. Case

number 171901990. Afternoon. Looks like everyone

is here. We have all counsel present. Mr. Valdez is

84a

present. Mr. Condie, you are standing so, I take it,

that you have something to say. Go ahead.

MR. CONDIE: It's hard to sit today, Your Honor.

I would like to make a, while we are on the record without a jury, make a motion. We don't need to argue forever on it. But I do think it's important to preserve the

record as best I can. And I have been able to confer

some things over lunch and I would like at this time to

make a motion for mistrial, Your Honor, based off of

testimony from Detective Haney that he interviewed

my client and gave him his Miranda rights and to

which Mr. Valdez invoked them. And I anticipate the

state arguing that this is meant to show a thorough investigation and to show that, to show that Detective

Haney has done everything that he can. And I do

think that was the intent, likely, however, I do think

that my client has a right not to speak to officers, to

have that right to invoke his right to counsel and offering that [480] without, with him not testifying doesn't

give him a chance to explain the situation or explain

the circumstances. So, therefore, Your Honor, it's the

defense's motion that the court grant a mistrial because of the state's questioning of Detective Haney to

that end.

THE COURT: All right. Thank you. I don't think

I need to hear from the State. I am going to deny that

motion. And I will however entertain a possible instruction if you want to the propose a jury instruction

to that end. I think the jury instructions to some extent

already touch on that. You are certainly welcome to

touch on in closing arguments. This is a jury instruction saying that the defendant doesn't have to testify.

He doesn't have to prove anything. You heard Detective Haney say that he gave him Miranda and he chose

not to. Simply exercising your Fifth Amendment

85a

Right is not something you should consider as a jury in

reaching your verdict. And I think that's perfectly acceptable for you to talk to them about that if you feel

that a corrective instruction would help out better in

that way, I'll certainly consider that corrective instruction.

MR. CONDIE: Thank you, Your Honor.

THE COURT: But the motion for mistrial I am

going to deny.

MR. CONDIE: I understand and just for the record I would also like to amend my motion to include

not only the [481] statement of invoking his Miranda

rights but also any statement of him failing to comply

with their request to provide the code for the phone. I

think that those are both applicable under the same

constitutional protections. So -THE COURT: I'll hear from the state on that one

if you want to address that one.

MS. SNOW: The state would object to that motion. The testimony from Detective Haney was proffered. Along a similar vain that the jury is entitled to

know about the thoroughness of the investigation and

how that occurred. It's proper for an officer to be able

to one, say the defendant chose not to give a statement.

Along those same lines, this evidence is a analogous to

that where he chose not to give a pass code. The jury

is entitled to know why the officers were not able to get

in the phone. And the efforts that they took to conduct

a thorough investigation, especially where that has become an issue that the defense intends to raise. The

state's entitled to rebut that with the available evidence.

86a

THE COURT: I don't want to get too far into some

of the esoteric things I tend to do sometimes. But it

seems to me that there's a fine line between a statement, first of all, and a pass code. Statement is a verbal, generally a verbal something. And Miranda does

protect someone from giving a statement. But Miranda does not necessarily, and [482] the Fifth Amendment does not necessarily protect someone from, it's a

fine line, from almost obstructing an investigation by

refusing to cooperate with police. And I'm not really

sure what giving a pass code on a phone where that

comes in. The Fifth Amendment I don't think is necessarily restricted to statements in the broad sense.

But at the same time, there is an obstruction of justice

issue as well. To what extent you allow someone to

obstruct an investigation, that's non-statement kind of

thing. So it's not a statement. But to what extent you

allow someone to obstruct investigation over something like that. And frankly, I don't know the answer,

counsel. I know what I am inclined to do and say that's

different than a statement, giving a pass code to a

phone.

MR. CONDIE: If I could make a -THE COURT: Is it just elaborating on what I just

said?

MR. CONDIE: Yes. All I wanted to add just for

the record, Your Honor, is the defense's position is that

providing the statement is testimonial in nature. And

the purpose to provide it would be to get the contents

of the phone, which would be incriminating. And he

does have that right to not incriminate himself.

self.

THE COURT: It's giving evidence against your-

87a

MR. CONDIE: Essentially.

[483] THE COURT: Yeah, which is a little bit different. And that's why I said in a broader sense the

Fifth Amendment does give some protection to that.

But Miss Snow you are standing. Go ahead.

MS. SNOW: I have nothing further. I am just

waiting for the court to rule unless there is a question.

THE COURT: Let me give it some thought and

we'll talk about it when we do the jury instructions.

MR. CONDIE: That's fine. We don't need to hold

the day up. That's not the intent.

THE COURT: All right. Anything further?

MR. CONDIE: No, Your Honor.

MS. SNOW: Nothing from the state.

THE COURT: Thank you. Anything further?

MR. CONDIE: No, Your Honor.

THE COURT: Would you give me a road map of

where you are headed?

MR. CONDIE: Our intention now is to call Miss

Prudence Valdez. Then I think after that, our intuition already is to call Miss Shiane Valdez. And then

Chris Zeigler. And we'll take it to that point.

THE COURT: All right. Thank you.

MR. CONDIE: And these should be fairly quick, Your

Honor.

THE COURT: Okay. Thank you. Deputy Neil,

[484] let's go ahead and bring in the jury.

***