The Appellate Group

Civil Stalking Injunction

State v. Valdez

State v. Valdez, 2021 UT App 13 (Harris, J.)

Criminal Law; Constitutional Law (Fifth Amendment)

Defendant appealed various convictions based on the allegations of Ex-Girlfriend, arguing, among other things, that his Fifth Amendment rights had been violated by the State and its witness’s commentary on Defendant’s refusal to provide police with his cell phone passcode. The Utah Court of Appeals reversed:

  • Defendant had a Fifth Amendment right to refuse to provide the cell phone swipe code. The State’s inviting the jury to draw an inference of guilt from Defendant’s refusal to provide the code violated Defendant’s rights under the Fifth Amendment. The trial court erred by allowing such evidence to come in and the State to use the evidence in this manner.
  • Note: As a matter of first impression, the court of appeals determined that law enforcement asking a defendant to provide a cell phone swipe code involves a “testimonial” act protected by the Fifth Amendment because the government is “compel[ling] the individual to use the contents of his own mind to explicitly or implicitly communicate some statement of fact,” rather than compelling a physical act, like the production of documents or submission to a blood draw. But the court left open the question of whether the result would be the same if law enforcement asked a defendant to unlock his phone himself, including through biometric means.
  • Note: Although the court of appeals did not reach a decision on the merits on other issues raised by Defendant, it expressed concern about certain testimony given by the police witnesses. Police Vouching: The court noted the impropriety of the State eliciting “vouching” testimony from the detective concerning his opinion of Ex-Girlfriend’s veracity, as well as the impropriety of detective’s testimony related to his ability to detect truth and ferret out lies. Police Hearsay: The court also expressed its concern that the State and trial court construed the “the so-called police investigation exception to the usual ban on hearsay testimony” too broadly, and the court gave its view that the detective’s narrative recounting of what Ex-Girlfriend had told him was not admissible under this rationale.

Read the full court opinion