State v. Valdez

2021 UT App 13

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ALFONSO MARGO VALDEZ,
Appellant.

Opinion
No. 20181015-CA
Filed February 11, 2021

Second District Court, Ogden Department
The Honorable Joseph M. Bean
No. 171901990

Emily Adams, Cherise M. Bacalski, and
Freyja Johnson, Attorneys for Appellant
Sean D. Reyes 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.

HARRIS, Judge:

¶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
 State v. Valdez

Valdez’s Fifth Amendment argument, reverse his convictions on
that basis, and remand for further proceedings.

BACKGROUND 1

¶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, Ex-Girlfriend 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 pulled out a revolver and

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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 State v. Valdez

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 Ex-Girlfriend 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 trying to kill her. Ex-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 Ex-Girlfriend. Much
of First Detective’s encounter with Witness and Ex-Girlfriend

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 State v. Valdez

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 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

20181015-CA 4 2021 UT App 13
 State v. Valdez

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
Ex-Girlfriend’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 Ex-Girlfriend 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 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-

20181015-CA 5 2021 UT App 13
 State v. Valdez

Girlfriend’s phone or any knife, and located only a starter pistol, 2
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.”

¶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

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.

20181015-CA 6 2021 UT App 13
 State v. Valdez

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
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 Miranda 3 rights and
that Valdez had thereafter refused to answer further questions.
The court denied the motion, but offered to give an instruction

3. Miranda v. Arizona, 384 U.S. 436 (1966).

20181015-CA 7 2021 UT App 13
 State v. Valdez

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 phone,” and that it was “inclined” to 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 Ex-Girlfriend
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

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month leading up to the incident. Valdez proffered that Aunt
could testify that, while Valdez was at Aunt’s house performing
odd jobs after he and Ex-Girlfriend 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] 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

20181015-CA 9 2021 UT App 13
 State v. Valdez

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’t 4] here today.

¶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 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

4. The record reads, “Those texts (inaudible) here today.” From
context, we infer that the inaudible phrase is “aren’t.”

20181015-CA 10 2021 UT App 13
 State v. Valdez

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 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

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 State v. Valdez

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 (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. 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 (1981)
(noting that the 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)).

¶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. Rather, the amendment “protects a person only against
being incriminated by his own compelled testimonial
communications.” Id. at 207 (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

20181015-CA 12 2021 UT App 13
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testimonial, and (3) the communication is incriminating. See
Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 189 (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, 141 S.
Ct. 237 (2020).

¶25 In this case—as in several similar cases, see, e.g., Doe, 487
U.S. at 207; 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 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 (2000); see also id. at 38 (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.

¶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,

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 State v. Valdez

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. The “touchstone”
used to 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
(1957)); see also Doe, 487 U.S. at 211 (“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 (1990) (quotation simplified).

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

¶29 On the other hand, citizens may be compelled to take
various nonverbal actions without implicating the Fifth

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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 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 (quotation simplified);
see also Hubbell, 530 U.S. at 35. 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 (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; see also id. at 36 (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 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
(quotation simplified); see also Muniz, 496 U.S. at 595 n.9
(explaining that “nonverbal conduct contains a testimonial
component whenever the conduct reflects the actor’s

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 State v. Valdez

communication of his thoughts to another”); Fisher v. United
States, 425 U.S. 391, 410 (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 (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 n.9 (majority
opinion) (quoting id. at 219 (Stevens, J., dissenting)). And in
Hubbell, in a majority opinion authored by Justice Stevens, the
Supreme Court fully endorsed the combination safe/strongbox
key distinction, holding that requiring a suspect to identify and
assemble “the hundreds of documents responsive to the requests
in [a] subpoena” was testimonial 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
(citing Doe, 487 U.S. at 210 n.9). 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.”).

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 State v. Valdez

¶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; Doe, 487 U.S. at
210 n.9. Indeed, while we are aware of no Utah 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)); see also United
States v. Spencer, No. 17-CR-00259-CRB-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

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 State v. Valdez

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, --- P.3d ----, 367 Or. 498, 510 (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
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 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 (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 (“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
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, invokes what it refers

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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 State v. Valdez

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 (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. 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. 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.

¶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 [g]overnment’s information.” Id.
at 411. 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. 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 because nothing [the party] has said or done is
deemed to be sufficiently testimonial.” Id. at 411.

¶39 After Fisher, the Supreme Court has mentioned the
foregone conclusion exception only once more, in Hubbell, again

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 State v. Valdez

in the context of assessing the testimoniality of an act of
producing documents. See 530 U.S. at 43–45. 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.

¶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, 234 A.3d 1254, 1287–88 (N.J. 2020)
(LaVecchia, J., dissenting), petition for cert. 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

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 State v. Valdez

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 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.”

¶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

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 State v. Valdez

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 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. 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. 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
(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 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

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 State v. Valdez

cell-phone-centric digital world. See, e.g., Carpenter v. United
States, 138 S. Ct. 2206, 2222 (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 (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

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 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, 125 N.E.3d
1286, 1291 (Ill. App. Ct. 2019) (“We consider that the proper
(continued…)

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 State v. Valdez

(…continued)
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, 234 A.3d 1254,
1273 (N.J. 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, --- P.3d ----, 367 Or. 498, 526–27
(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 code and was not merely asked to provide an unlocked
(continued…)

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 State v. Valdez

verbal response—whether 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 (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 (quotation
simplified). Indeed, 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.

(…continued)
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, 141 S. Ct. 237 (2020), we elect not to—take a position on
the further applicability of the exception to the facts of this case.

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 State v. Valdez

(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 Ex-Wife’s trial
testimony—that 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 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

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
(continued…)

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 State v. Valdez

¶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 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 (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.

(…continued)
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.

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 State v. Valdez

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 (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
(1967) (stating that “constitutional error . . . casts on someone
other than the person prejudiced by it a burden to show that it
was harmless”).

¶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 (quotation
simplified). In undertaking this inquiry, we “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

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 State v. Valdez

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 (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-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 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. Ex-Girlfriend’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.

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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 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 Ex-Girlfriend’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 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

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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 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
assistance 8 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 so-called “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 of the [house].” Id.
at 234. Other jurisdictions have likewise recognized that limited

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 (1984).

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 State v. Valdez

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 out-of-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 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 “evidence used to directly rebut a witness’s
testimony or other evidence”), that Aunt’s testimony should
have been allowed as ordinary impeachment evidence,

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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.

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