City of Hays v. Vogt

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.

GOVERNMENTAL INTERESTS

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.