5 ms·

So far it has held up in the court of appeals, but there's another hearing upcoming. Note that a defendant is in a much stronger position if they have maintain

So far it has held up in the court of appeals, but there's another hearing upcoming. Note that a defendant is in a much stronger position if they have maintained complete silence even before the password is requested - you can't just clam up halfway through a conversation.

alisonkisk 5y ago
> you can't just clam up halfway through a conversation. You certainly can.
matheusmoreira 5y ago
> you can't just clam up halfway through a conversation Why?
- elliekelly 5y ago
  I’m not the person you’re replying to but I think they’re getting at the state/a jury’s ability to draw inferences from when and in response to which question you decided to invoke your fifth amendment right to remain silent.
- MerelyMortal 5y ago
  I'm not a lawyer, but I've heard that the 5th Amendment is an "all or nothing" thing - that a judge might say you answered all these other questions, so you can't pick and choose which ones you don't want to answer, so now the court is compelling you to answer.
  - ceejayoz 5y ago
    No. The Miranda warning explicitly states: > If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time. If the questioning goes from "what's your name, what's your job, where do you live" to "why did you murder so-and-so", you're allowed to invoke the Fifth there, even if you answered the innocuous questions earlier. At trial, you can't start testifying on your own defense and invoke the Fifth part way through, but you can during police interrogation. https://www.findlaw.com/criminal/criminal-rights/fifth-amendment-right-against-self-incrimination.html https://www.findlaw.com/criminal/criminal-rights/fifth-amend... "Once the defendant takes the witness stand, this particular Fifth Amendment right is considered waived throughout the trial." (Witnesses have full Fifth Amendment protections while testifying, oddly enough. The above is specific to a) trial and b) the defendant)
Zak 5y ago
You most certainly can clam up halfway through a conversation, and the fact that you did cannot be used against you in a criminal trial. It's a common (but not mandatory) part of the Miranda warning that a person being questioned in custody can stop answering questions at any time. https://en.wikipedia.org/wiki/Miranda_warning https://en.wikipedia.org/wiki/Miranda_warning
- CapitalistCartr 5y ago
  That has not always worked out. For instance, "clamming up" in the midst of questioning, but not verbally invoking your right to remain silent has been used against a defendant. The entire process is a minefield which is only avoided by immediately stating your rights, and not cooperating with the police at all. Unfortunately, in the USA, treat the police as a third-world country.
- colinmhayes 5y ago
  This isn't how the rulings involving phone passwords has worked out. The supreme court has not ruled on this question so each state has its own interpretation of the fifth amendment here. Some states have found that the fifth amendment provides no protection for passwords, others have found that the fifth amendment does protect passwords, but only if you have refused to give any evidence from the locked device. Once you give some evidence from the device I believe every state says you can be forced to give up your password.
j-bos 5y ago
IIRC under the 5th amendment, you can indeed clam up at any time you so choose,except in court under oath. And even then it's not cut and dry.

alisonkisk 5y ago

> you can't just clam up halfway through a conversation. You certainly can.

matheusmoreira 5y ago

> you can't just clam up halfway through a conversation Why?

elliekelly 5y ago
I’m not the person you’re replying to but I think they’re getting at the state/a jury’s ability to draw inferences from when and in response to which question you decided to invoke your fifth amendment right to remain silent.
MerelyMortal 5y ago
I'm not a lawyer, but I've heard that the 5th Amendment is an "all or nothing" thing - that a judge might say you answered all these other questions, so you can't pick and choose which ones you don't want to answer, so now the court is compelling you to answer.
- ceejayoz 5y ago
  No. The Miranda warning explicitly states: > If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time. If the questioning goes from "what's your name, what's your job, where do you live" to "why did you murder so-and-so", you're allowed to invoke the Fifth there, even if you answered the innocuous questions earlier. At trial, you can't start testifying on your own defense and invoke the Fifth part way through, but you can during police interrogation. https://www.findlaw.com/criminal/criminal-rights/fifth-amendment-right-against-self-incrimination.html https://www.findlaw.com/criminal/criminal-rights/fifth-amend... "Once the defendant takes the witness stand, this particular Fifth Amendment right is considered waived throughout the trial." (Witnesses have full Fifth Amendment protections while testifying, oddly enough. The above is specific to a) trial and b) the defendant)

Zak 5y ago

You most certainly can clam up halfway through a conversation, and the fact that you did cannot be used against you in a criminal trial. It's a common (but not mandatory) part of the Miranda warning that a person being questioned in custody can stop answering questions at any time. https://en.wikipedia.org/wiki/Miranda_warning https://en.wikipedia.org/wiki/Miranda_warning

CapitalistCartr 5y ago
That has not always worked out. For instance, "clamming up" in the midst of questioning, but not verbally invoking your right to remain silent has been used against a defendant. The entire process is a minefield which is only avoided by immediately stating your rights, and not cooperating with the police at all. Unfortunately, in the USA, treat the police as a third-world country.
colinmhayes 5y ago
This isn't how the rulings involving phone passwords has worked out. The supreme court has not ruled on this question so each state has its own interpretation of the fifth amendment here. Some states have found that the fifth amendment provides no protection for passwords, others have found that the fifth amendment does protect passwords, but only if you have refused to give any evidence from the locked device. Once you give some evidence from the device I believe every state says you can be forced to give up your password.

j-bos 5y ago

IIRC under the 5th amendment, you can indeed clam up at any time you so choose,except in court under oath. And even then it's not cut and dry.