State v. Valdez

This opinion is subject to revision before final
publication in the Pacific Reporter

2023 UT 26

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,
Petitioner,
v.
ALFONSO VALDEZ,
Respondent.

No. 20210175
Heard March 16, 2022
Reheard March 8, 2023
Filed December 14, 2023

On Certiorari to the Utah Court of Appeals

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

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
 STATE v. VALDEZ
Opinion of the Court

JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE PEARCE, JUSTICE
HAGEN, and JUDGE WALTON joined.
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.
The Court reheard this case after receiving supplemental
briefing and the addition of two new Justices to the Court.
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.

JUSTICE PETERSEN, opinion of the Court:

INTRODUCTION
¶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 reversed Valdez’s
conviction and remanded the case back to the district court for
further proceedings.

2
 Cite as: 2023 UT 26
Opinion of the Court

¶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 (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 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.
¶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

3
 STATE v. VALDEZ
Opinion of the Court

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.
¶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
__________________________________________________________
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.

4
 Cite as: 2023 UT 26
Opinion of the Court

received some of Jane’s mail after she moved out and wanted to
give it to her. Jane agreed to 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
¶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 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
__________________________________________________________
4 This search warrant was not made part of the record on appeal.

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 detective, the State
asked him if he obtained a “warrant to search the phone,” to which
he replied, “Yes, I did.” (Emphasis added.)

5
 STATE v. VALDEZ
Opinion of the Court

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
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.”
¶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

6
 Cite as: 2023 UT 26
Opinion of the Court

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

7
 STATE v. VALDEZ
Opinion of the Court

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.
¶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).
¶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.

8
 Cite as: 2023 UT 26
Opinion of the Court

¶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 (1965), which
held that the 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. 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

__________________________________________________________
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 (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. 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, 220 A.3d 534, 548–51 (Pa. 2019); People v. Sneed, No. 127968,
2023 WL 4003913, at *13–16 (Ill. June 15, 2023).

9
 STATE v. VALDEZ
Opinion of the Court

Amendment as described in Griffin. Id. ¶¶ 47–48.6 And the court
concluded that this violation was not harmless beyond a reasonable
doubt and therefore Valdez’s conviction had to be vacated. Id.
¶¶ 51–53.
¶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).

__________________________________________________________
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 (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 (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 (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 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.

10
 Cite as: 2023 UT 26
Opinion of the Court

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.
¶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

__________________________________________________________
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, post-Miranda
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, post-Miranda silence
as a matter of fundamental fairness under the Due Process Clause.
See Doyle v. Ohio, 426 U.S. 610, 617–18 (1976). This is so because the
Miranda warning itself carries an implicit assurance that silence will
carry no penalty. Id. at 618. 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). And this due
(continued . . .)
11
 STATE v. VALDEZ
Opinion of the Court

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

12
 Cite as: 2023 UT 26
Opinion of the Court

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 (1988) (cleaned up). Thus, the
Self-Incrimination Clause applies to communications that are
“testimonial, incriminating, and compelled.” Hiibel v. Sixth Jud.
Dist. Ct. of Nev., Humboldt Cnty., 542 U.S. 177, 189 (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 providing 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
(continued . . .)
13
 STATE v. VALDEZ
Opinion of the Court

¶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. 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 (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.
¶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. 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 through
biometric means (for example, fingerprint or facial identification)
or through entering the passcode themselves without providing
__________________________________________________________
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 Fifth Amendment if they wish to
seek appellate review of these emergent issues.

14
 Cite as: 2023 UT 26
Opinion of the Court

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 real-world 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 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. Rather, these acts
“make[] a suspect or accused the source of real or physical
evidence” themselves. Schmerber v. California, 384 U.S. 757, 764
__________________________________________________________
9 See Doe v. United States, 487 U.S. 201, 210 (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)).

15
 STATE v. VALDEZ
Opinion of the Court

(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.
¶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 U.S. 391, 410 (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 (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.
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 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 (2000), the
Supreme 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]

16
 Cite as: 2023 UT 26
Opinion of the Court

respondent to make extensive use of the contents of his own mind.”
Id. at 43 (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. 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 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.
¶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

17
 STATE v. VALDEZ
Opinion of the Court

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 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 to provide their
__________________________________________________________
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-of-production
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, 11 N.E.3d 605, 611 (Mass. 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
(continued . . .)
18
 Cite as: 2023 UT 26
Opinion of the Court

passcode to law enforcement, the act-of-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).
¶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 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

__________________________________________________________
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)).
19
 STATE v. VALDEZ
Opinion of the Court

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, “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.

20
 Cite as: 2023 UT 26
Opinion of the Court

¶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-
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 (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. After learning the
whereabouts of the tax documents, the government subpoenaed
the attorneys to turn them over. Id. at 394. The taxpayers sought to
prevent their attorneys from turning over the documents, arguing
that such action would violate their Fifth Amendment right against
self-incrimination. Id. at 395.
¶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. 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
21
 STATE v. VALDEZ
Opinion of the Court

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 United States v. Hubbell,
530 U.S. 27 (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. 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. 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. 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.
¶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

22
 Cite as: 2023 UT 26
Opinion of the Court

could independently confirm their existence and
authenticity through the accountants 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. 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 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 (1988) (quoting United States v. Hasting, 461 U.S. 499, 515
(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

23
 STATE v. VALDEZ
Opinion of the Court

to a claim made by defendant or his counsel, we think there is no
violation of the [Fifth Amendment].” Id.11
¶68 But, assuming the rationale of Robinson applies here, we
cannot say that Valdez unfairly used his 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 ex-wife’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
__________________________________________________________
11 In United States v. Robinson, 485 U.S. 25 (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. In response, the
prosecutor pointed out that the defendant had the opportunity to
tell his story on the witness stand. Id. at 28. 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.
24
 Cite as: 2023 UT 26
Opinion of the Court

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 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 act-of-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 not use his prior
silence as both a “sword” and a “shield.”
¶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.

25