City of Hays v. Vogt and the Meaning of “Criminal Case” in the Self-Incrimination Clause

Another under-the-radar Supreme Court case this Term is City of Hays v. Vogt, which presents the question whether a post-charge, pre-trial probable cause hearing is part of a “criminal case” within the meaning of the Self-Incrimination Clause.  Vogt was a police officer employed by the City of Hays who was allegedly required to make self-incriminating statements in the course of an internal investigation into some mishandled property that had come under the control of the police department.  Vogt was then charged with two felony counts in Kansas state court relating to the mishandled property.  After he was charged, the State held a hearing for the purpose of determining whether there was probable cause for the prosecution to proceed against him.  At that probable cause hearing, the statements Vogt had been compelled to make were used against him.  However, the judge found no probable cause to proceed and dismissed the charges.  Vogt then sued the City on the ground, inter alia, that the use of his compelled statements against him at the probable cause hearing violated his right under the Fifth and Fourteenth Amendments not to be "compelled in any criminal case to be a witness against himself." 

There are a number of unsettled issues in this type of case.  For example, since the Self-Incrimination Clause is violated only if statements are compelled and then used against the speaker, what is the significance of the fact that different parties here did the “compelling” and the “using?”  (The City supposedly compelled the statements and the State of Kansas then used them.)  Also, is there § 1983 liability at all for a violation of the Self-Incrimination Clause or is the victim’s sole remedy exclusion of the statements?  And if the statements have been used but the case is dismissed, as here, are there any damages?  Finally, did Vogt forfeit his claim by failing to claim the privilege at the time the statements were compelled?

Irrespective of whether and how these questions ultimately are answered, the Court granted certiorari only on the question of whether the probable cause hearing here was part of a “criminal case.”  The question of when a “criminal case” begins has been bouncing around the courts of appeals for some time, which is presumably why the Court granted certiorari.

I joined an excellent amicus brief recently filed by the Constitutional Accountability Center arguing that the probable cause hearing is indeed part of a “criminal case.”  Textually, the term “criminal case” has to be distinguished from two terms used in the Sixth Amendment but not the Fifth:  “criminal prosecutions” and “trials.”  The City’s claim that the Self-Incrimination Clause can be violated only at trial admittedly is supported by dicta in Chavez v. Martinez, which held that the Self-Incrimination Clause is not violated when police officers compel statements from a suspect.  But Chavez held only that the “criminal case” does not encompass police interrogations; it did not have occasion to determine when exactly the “criminal case” begins.  The City’s claim that “criminal case” is essentially synonymous with “trial” is in considerable tension with the fact that the Sixth Amendment specifically uses the word “trial.”  Presumably, if the framers and ratifiers of the Self-Incrimination Clause had understood it to apply only at trial, they would have used that word in the Fifth Amendment as well.

The City’s claim is also in considerable tension with the fact that the Sixth Amendment applies only to “criminal prosecutions.”  Because a trial can take place only within the confines of a criminal prosecution, it would have made perfect sense to include the Self-Incrimination Clause in the Sixth Amendment if the framers and ratifiers had understood the Clause as applying only at trial.  The fact that they did not strongly suggests that they understood the Self-Incrimination Clause as imposing constraints upon use of compelled statements that go beyond the confines of a criminal trial.

More broadly, the structure of the Fifth and Sixth Amendments represents a division of rights between those that are triggered prior to indictment and those that are triggered after indictment.  The prefatory language of the Sixth Amendment – “In all criminal prosecutions” – demonstrates that the Amendment applies only after formal charges have been brought.  By contrast, the Fifth Amendment largely governs the prerequisites for bringing formal charges in the first place:  the Grand Jury Clause requires that they be brought only via indictment or presentment; the Double Jeopardy Clause forbids charges when guilt or innocence has previously been adjudicated; the Due Process Clause forbids the government from creatively getting around these requirements, by providing that criminal punishment can follow only from ordinary process; and the Takings Clause modifies the Due Process Clause by preserving the narrow exception for lawful takings via eminent domain.  Applying the Self-Incrimination Clause to use of compelled statements in proceedings that take place prior to formal charges makes perfect sense under this structure.  And even though the probable cause hearing in this case took place subsequent to formal charges, that will not always be the case, as when a prosecutor seeks to use compelled statements in a grand jury proceeding in order to obtain an indictment.

And speaking of grand juries, Vogt’s reading of “criminal case” in the Fifth Amendment is also consistent with the use of the term “cases” in art. III, sec. 2:  “The judicial Power shall extend to all Cases, in Law and Equity, arising under . . .  the Laws of the United States . . . .”  Everyone recognizes that a federal district court has jurisdiction over a federal grand jury, even before it issues an indictment.  This judicial power must come from somewhere; it comes from Art. III, sec. 2.  Thus, a grand jury proceeding must constitute part of a “case[]” within the terms of that section.  It would be anomalous if the word “cases” in art. III, sec. 2 covered pre-trial proceedings such as grand juries but “case” in the Fifth Amendment did not.