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If I were SCOTUS, here's how I would settle this question: The accused can't be compelled to produce a password, and the prosecution can't use the defendant's

If I were SCOTUS, here's how I would settle this question: The accused can't be compelled to produce a password, and the prosecution can't use the defendant's silence as an argument against them. BUT the police can explain in court that they were unable to search and/or seize what's listed on the warrant due to an unknown password and unbreakable encryption. In other words, they can't say "Joe wouldn't give us his phone password and that means he's guilty". But they can say "we were unable to search his phone or collect these documents listed on the warrant due to unbreakable phone security". There's not a huge difference between those two statements when it comes to the jury. They'll understand that evidence is missing, and that the defendant can probably produce it but won't. Maybe civil libertarians won't like that, but I think that's misplaced: there is a warrant, remember, it's not just a random search. And the defendant can always produce it if it's exculpatory.

halJordan 3y ago
That merely adds a layer of indirection rather than solving anything. It is still using the person's silence against them and saying "there is proof behind that door." If there is proof it needs to be produced. If the State can always go "well there's encrypted data and inside the encrypted data is the reason to imprison this guy." You dont need the evidence, you just need to know its not visible. Why ever even seek the decryption order if you automatically get the negative implication for free? Its never been the defendants job to prove their innocence. Remember that's where we start. A defendant is innocent. An innocent person does not need to unlock anything, they're innocent.
- chmod600 3y ago
  Are we supposed to tell the prosecutor that they can't ask the police witnesses questions about how their legal, warranted search went? Or that the police can't answer?

halJordan 3y ago

That merely adds a layer of indirection rather than solving anything. It is still using the person's silence against them and saying "there is proof behind that door." If there is proof it needs to be produced. If the State can always go "well there's encrypted data and inside the encrypted data is the reason to imprison this guy." You dont need the evidence, you just need to know its not visible. Why ever even seek the decryption order if you automatically get the negative implication for free? Its never been the defendants job to prove their innocence. Remember that's where we start. A defendant is innocent. An innocent person does not need to unlock anything, they're innocent.

chmod600 3y ago
Are we supposed to tell the prosecutor that they can't ask the police witnesses questions about how their legal, warranted search went? Or that the police can't answer?