Does the prosecution’s use of allegedly compelled statements at a pretrial hearing, not at a criminal trial, violate the Fifth Amendment’s Self-Incrimination Clause?
This case asks the Supreme Court to review the scope of the Fifth Amendment’s Self-Incrimination Clause, particularly the clause’s applicability to probable cause hearings. Petitioner, the City of Hays, argues that the privilege against self-incrimination applies only during a criminal trial and that they should therefore not be civilly liable for the introduction of an incriminatory statement during a pretrial hearing. Respondent Matthew Vogt contends that his Fifth Amendment right applies to an entire “criminal case,” which includes pretrial proceedings. This case may resolve questions about the scope of defendants’ Fifth Amendment rights, as well as issues relating to judicial efficiency and internal workplace investigations.
Questions as Framed for the Court by the Parties
Whether the Fifth Amendment is violated when allegedly compelled statements are used at a probable cause hearing but not at a criminal trial.
In 2013, Matthew Vogt, a police officer in the City of Hays, Kansas, applied for a new position with the City of Haysville’s police department. In his application to the City of Haysville police department, Vogt acknowledged that he had kept a knife which he had obtained while working as a Hays police officer. In order to maintain his job offer with Haysville, Vogt disclosed his possession of the knife and returned it to the Hays police department. The Hays police department thereafter began an internal investigation into the incident, while the Kansas Bureau of Investigation initiated a criminal investigation. In light of the criminal investigation, the Haysville police department rescinded its job offer. As part of the investigation, the Hays police department supplied the Kansas Bureau of Investigation with signed statements that Vogt had made concerning the knife. Kansas ultimately charged Vogt with two felonies relating to his possession of the knife. A Kansas state district court dismissed the charges against Vogt after the pretrial hearing, finding a lack of probable cause. Vogt then filed a lawsuit in the United States District Court for the District of Kansas against the City of Hays, the City of Haysville, and several individual police officers, arguing that his Fifth Amendment rights had been violated when prosecutors used his statements against him at the probable cause hearing. The district court dismissed Vogt’s case, holding that he had failed to state a valid Fifth Amendment claim because the incriminating statements had not been used against him in a criminal trial.
Vogt appealed to the Tenth Circuit. There, the defendants argued that the phrase “criminal case” effectively limits the application of the Fifth Amendment only to trials, and that criminal defendants therefore do not have a Fifth Amendment right against self-incrimination during pretrial proceedings. Ultimately, however, the Tenth Circuit departed from the district court’s more limited reading of “criminal case,” which encompassed only the criminal trial, and held that the phrase “criminal case” may include probable cause hearings such as Vogt’s. The Tenth Circuit affirmed the lower court’s ruling in part, agreeing that Vogt’s claims against the City of Haysville and various individual police officers should have been dismissed. However, the court reversed the dismissal of Vogt’s claim against the City of Hays, holding that Vogt had adequately pleaded that the City had violated his Fifth Amendment rights by using his statements in anticipation of the probable cause hearing.
On June 13, 2017, the City of Hays petitioned the Supreme Court for a writ of certiorari, requesting that the Court settle a circuit split on the question of whether pretrial uses of compelled statements violate a criminal defendant’s Fifth Amendment rights. The Supreme Court granted the petition on September 28, 2017.
SCOPE OF THE PRIVILEGE AGAINST SELF-INCRIMINATION
The City of Hays (“the City”) argues that the use of Vogt’s allegedly compelled statements at a probable cause hearing did not violate his Fifth Amendment rights because the privilege against self-incrimination applies only at the trial phase of a criminal case. The City points out that the Supreme Court has distinguished the Fifth Amendment’s self-incrimination privilege from the Fourth Amendment’s right to be free of unreasonable searches and seizures, noting that while pre-trial actions of law enforcement can violate the Fourth Amendment, only a trial implicates the Fifth Amendment. The City also notes that the Supreme Court has repeatedly described the privilege against self-incrimination as “a fundamental trial right” in several of its opinions on the issue. On this note, the City singles out a subset of “penalty” claims where the Supreme Court has held that government authorities cannot threaten their own employees with sanctions in order to compel incriminating testimony and then proceed to use that testimony during a criminal trial. Even in these cases, the City alleges that the Court only prohibited the use of compelled statements at trial, because that specific use was what threatened the defendant’s Fifth Amendment right. The City places special emphasis on the need for the court to apply a clear test for when the Fifth Amendment applies, such as exclusively during a trial, arguing that such a test cannot be based exclusively on “the context and purpose for which an allegedly compelled statement is being used.”
In addition to these precedents, the City claims that three established legal principles support the definition of the privilege against self-incrimination as exclusively a trial right. First, the City discusses the concept that if accused persons do not face criminal liability, they cannot invoke the Fifth Amendment and refuse to testify. That is because, according to the City, the Fifth Amendment protects defendants not from embarrassment, “personal disgrace or opprobrium,” but from criminal liability, and such liability arises only out of a criminal trial Second, the City compares probable cause hearings to grand jury determinations, in which defendants cannot challenge an indictment by claiming that the grand jury’s members considered previously compelled statements. The City asserts that in Kansas, the probable cause hearing is equivalent to a grand jury proceeding, and therefore allegedly compelled statements should similarly be allowed. Third, the City turns to other constitutional provisions for support, highlighting the Supreme Court’s prior rulings that the Sixth Amendment’s Confrontation and Compulsory Process Clauses are also inapplicable in probable cause hearings. According to the City, these decisions are also relevant to the Fifth Amendment because it uses the same term, “witness,” to describe defendants.
Vogt responds that under the Fifth Amendment’s plain text, the privilege against self-incrimination protects witnesses during any phase of a “criminal case.” Vogt notes that the basic features of a probable cause hearing suggest that it fits easily within the concept of a criminal case: it is an adversarial proceeding, it takes place in a courtroom, and its purpose is to determine whether there is enough evidence to merit a full trial. According to Vogt, this context and purpose made the probable cause hearing an integral part of the criminal case against him because they exposed him to the risk of criminal sanctions. Vogt also notes that the Supreme Court has typically found that a defendant is a “witness”—and therefore entitled to protection under the Fifth and Sixth Amendments—if he or she gives testimonial evidence. Vogt then explains that compelled statements given at a probable cause hearing qualify as testimonial because they are necessary to establish facts relevant to the investigation. Thus, Vogt asserts that he meets both the necessary predicates for the privilege against self-incrimination: he is a “witness” who testified at a hearing that was an essential step in the “criminal case” against him. Additionally, Vogt also refutes the City’s characterization of the Supreme Court’s “penalty” cases, arguing that these judgments established broad protections for any use of compelled statements against the defendant that might eventually lead to criminal punishments.
Vogt further challenges the City’s analogizing of probable cause hearings with grand jury proceedings, noting that the grand jury mechanism has its own distinctive characteristics and that these features make the City’s comparison inapt. Vogt observes that courts generally extend fewer constitutional protections to grand jury proceedings in part because they precede any formal criminal indictment.Moreover, Vogt points out that Kansas’ decision to incorporate preliminary proceedings into criminal cases, though not constitutionally required, also cannot be considered exempt from constitutional requirements. Finally, Vogt maintains that the Fifth Amendment’s common law roots demonstrate that the right stretches beyond actual trials, describing how Framing-era courts prohibited the use of compelled statements during pretrial preliminary examinations that closely resembled modern probable cause hearings.
The City asserts that government employees have a compelling interest in effectively investigating and punishing misconduct within their ranks, and that a ruling for Vogt would damage these important goals. The City claims that such a decision may coerce local governments into creating new, burdensome pretrial procedures or deter government officials from launching criminal investigations out of concern that eliciting pretrial statements from suspected persons would expose them to civil lawsuits for violating those individuals’ Fifth Amendment rights. The City emphasizes the basic problem that government employers will be unable to interview employees during disciplinary proceedings for fear of subsequent legal repercussions. The City adds that a ruling for Vogt may generate complex evidentiary admissibility questions for judges in what are “supposed to be preliminary determinations about whether to hold [a] trial in the first place.” Addressing the other side of the issue, the City maintains that a ruling in their favor will not encourage government officials to exploit criminal defendants for at least two reasons: first, these officials will likely understand what kinds of evidence will not be admitted at trial and will refrain from soliciting such testimony, and second, the Fourth, Eighth, and Fourteenth Amendments provide criminal defendants with an array of additional constitutional protections.
Vogt counters that a ruling in his favor would not undermine the government’s interest in rooting out misconduct. First, Vogt observes that multiple states have already adopted measures that effectively balance state interests against defendants’ Fifth Amendment rights, such as separating criminal from administrative investigations and carefully editing out potentially incriminating testimony from interview records before prosecuting authorities can review them. Moreover, Vogt maintains that such practices would be easy to adopt—government officials could simply notify the suspected wrongdoer that “they are free not to answer the question.” According to Vogt, Fifth Amendment protections are especially important at these investigatory and probable cause hearing stages of a criminal case because most defendants will never even go to trial. Thus, Vogt points out that a probable cause hearing may be the last chance defendants have to rebut the charges against them before they accept a plea. Ultimately, Vogt claims that even a compelling government interest does not provide a valid reason to abridge Fifth Amendment rights.
EFFECT ON CRIMINAL DEFENDANTS AND THE CRIMINAL JUSTICE SYSTEM
Writing in support of the City of Hays, the United States argues that prohibiting the use of compelled statements in pretrial proceedings would improperly require judges to determine difficult issues of admissibility during the pretrial phase. The United States contends that the application of the Self-Incrimination Clause to pretrial hearings might hamper a court’s ability to rule on fundamental preliminary issues, such as whether there exists probable cause to bring a defendant to trial. According to the United States, the determination of whether compelled statements violate the Fifth Amendment is often a complex issue riding on factual disputes, and, as such, it will likely require a substantial amount of a court’s pretrial resources and may ultimately interrupt important pretrial proceedings. Particularly when disputes over the admissibility of compelled statements do not weigh on the question of a defendant’s guilt, the United States suggests that pretrial adjudication of such disputes would undermine both the purpose of the Fifth Amendment and the necessary procedure of a criminal trial. Relatedly, the United States claims that because Vogt’s statements were never used to determine his guilt or innocence, but instead were meant to help the district court determine whether there was enough evidence to proceed to trial, there was no violation of the Self-Incrimination Clause. If the Court were to prohibit the prosecution’s use of the statements in the probable cause hearing, according to the United States, it would improperly conflate a defendant’s interest in avoiding trial (due to a lack of probable cause), and a defendant’s interest in avoiding conviction.
The National Association of Criminal Defense Lawyers (“NACDL”) and the American Civil Liberties Union (“ACLU”), writing in support of Vogt, counter that the use of compelled statements against defendants in pretrial proceedings would seriously inhibit a defendant’s right to a fair trial. The ACLU and NACDL point out that an incriminating statement made by a defendant often meets or exceeds the standards of probable cause that govern pretrial hearings, and as a result, such statements alone allow the prosecution to reach the trial phase of its case. This is especially troublesome, according to the ACLU and the NACDL, given the large number of criminal cases that culminate in plea deals. Since many criminal cases conclude after the preliminary hearing stage, the ACLU and NACDL argue that constitutional rights such as those guaranteed by the Fifth Amendment’s Self-Incrimination Clause must apply at this preliminary stage. Relying on a compelled statement as a charge’s foundation also creates problems that extend beyond individual defendants, according to the ACLU and NACDL. The ACLU and the NACDL argue that the integrity of the criminal justice system is jeopardized in these circumstances because even if a defendant refuses to agree to plead guilty in the face of his or her compelled statement, a prosecutor might threaten to rely on these statements in order to move to the trial phrase, which may pressure a defendant into accepting a plea deal he or she might not otherwise take. By contrast, according to the ACLU and NACDL, if the Court does not allow preliminary hearings to move to the trial phrase based only on compelled statements, then prosecutors would be less likely to bring charges that they would not be able to prove during trial.
COOPERATION BETWEEN PUBLIC EMPLOYERS AND EMPLOYEES
State and Local Government Employers (“the Employers”), in support of the City of Hays, argue that holding government employers accountable for the actions of prosecutors would burden employers’ ability to effectively oversee their employees. The Employers contend that since employers are best situated to root out employee misconduct, they should not be held liable for pursuing and reporting this conduct to law enforcement. Because Vogt claims that it was the prosecution, not the City of Hays, who violated his Fifth Amendment rights during the probable cause hearing, the Employers argue that finding the City of Hays liable for the prosecutor’s actions would have a dampening effect on important employer disciplinary measures taken in response to employee misconduct. In order to avoid this problem, the Employers propose either that the Court could limit liability to the individual actually introducing the statement or limit the remedy to excluding the statement in question from any criminal case.
Writing in support of Vogt, the American Federation of Government Employees (“AFGE”) and American Federation of Teachers (“AFT”) contend that allowing Vogt’s statements to be used against him during the pretrial hearing would in fact threaten workplace investigations. The AFGE and AFT suggest that if statements compelled during workplace investigations may be brought into court, employees could be faced with the choice of either forfeiting their jobs or risking criminal penalties. Thus, the AFGE and the AFT contend that if these statements are not protected from later use, employees may be less likely to offer information, which will impair the ability of employers to discover and stop misconduct at the internal level.
- Hays Daily News, U.S. Solicitor General to Join Argument in City’s Appeal to U.S. Supreme Court, The Hays Daily News (Jan. 10, 2018).
- Jody Godoy, Justices to Review Compelled Statements’ Pretrial Use, Law360 (Sept. 28, 2017)