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SCOTUS will decide whether Fifth Amendment bars use of statements at pretrial hearings, or only at trial

City of Hays, Kansas v. Vogt, USSC No. 16-1495, cert granted 9/28/17

Question presented:

Whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.

Decision below: Vogt v. City of Hays, Kansas, 844 F.3d 1235 (10th Cir. 2017)

USSC Docket

Scotusblog page (includes links to cert petition and responses; briefs; and commentary)

This is a § 1983 action, but the question it presents will be of obvious importance to criminal prosecutions, as it will determine what the Fifth Amendment means when it says that no person shall be compelled in a “criminal case” to be a witness against himself. In particular, is “criminal case” limited to a trial? Or does it include earlier stages of a criminal prosecution?

Vogt, a police officer in the city of Hays, Kansas, was compelled to make some incriminating statements as a condition of keeping his job, and those statements led to him being criminally charged. The statements were used at a probable cause hearing in the criminal case, but at the conclusion of that hearing the judge dismissed the charges. Vogt then sued the city and various officials for violating his civil rights by using his compelled statements against him. The city argued Vogt’s Fifth Amendment rights weren’t violated because that protects only against the use of compelled statements at trial, and Vogt’s case never got that far.

The Tenth Circuit rejected the city’s claim, as have other circuits—the Seventh included, in Best v. City of Portland, Indiana, 554 F.3d 698, 702-03 (7th Cir. 2009) (right applies at suppression hearings), and Sornberger v. City of Knoxville, Illinois, 434 F.3d 1006, 1027 (7th Cir. 2006) (right applies at bail hearings, arraignments, probable cause hearings). But the Supreme Court hasn’t expressly defined when the “criminal case” referred to in the Fifth Amendment commences. It has held the Fifth Amendment applies post trial, at sentencing, Mitchell v. United States, 526 U.S. 314, 320-21 (1999), but it also suggested in dicta that the right against self-incrimination is strictly a trial right, United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990). Most recently, in Chavez v. Martinez, 538 U.S. 760 (2003), the Court split on (and thus did not decide) whether the Fifth Amendment is violated the moment the statement is compelled, or whether it takes the use of the statement in a courtroom to complete the violation. In the absence of a definitive holding from the Court some circuits have suggested (if not quite held outright) that the Fifth Amendment’s reference to a “criminal case” is limited to trial, see Vogt, 844 F.3d at 1240, thus setting up enough of a conflict for the Court to decide it was time to resolve the issue.

The Wisconsin Court of Appeals has addressed this issue once, in a ch. 980 case, State v. Mark, 2008 WI App 44, 308 Wis. 2d 191, 747 N.W.2d 727. Experts evaluating Mark for his commitment trial based their opinions on some compelled statements, and the state, citing Verdugo-Urquidez, argued the statements were used before, not at, trial and therefore the experts’ use of the statements didn’t violate Mark’s Fifth Amendment privilege. The court rejected the claim that Verdugo-Urquidez established a limit on the application of the Fifth Amendment, and that in any event Mark had a trial at which the experts testified to their opinions based on the compelled statements. 308 Wis. 2d 191, ¶¶26-34. Stay tuned for the definitive answer from the Court later this Term.

UPDATE: On May 29, 2018, the Court dismissed the writ of certiorari as improvidently granted, so there will be no decision on the merits in this case.

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