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Saturday, December 23, 2017

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.

Posted by Michael J.Z. Mannheimer on December 23, 2017 at 04:12 PM | Permalink


Yes, Calandra does contain that language but, of course, it is dicta. Calandra cites only Lawn v. U.S. for that proposition (as does Petitioner's brief in this case). But Lawn doesn't stand for that proposition either. In that case, the petitioners argued in the Supreme Court that the district court had not held a hearing to determine whether information before the grand jury that indicted them had been derived from evidence that petitioners had been compelled to produce before a different grand jury. If such use did not violate the Self-Incrimination Clause, all the Court had to do was to say so. But it didn't. First, the Court wrote that the petitioners merely had a "suspicion" to believe that the compelled materials or items derived therefrom had been viewed by the second grand jury and therefore they had "laid no foundation for the holding of a protracted preliminary hearing to determine whether there was any substance to their suspicion." Again, it would have been unnecessary to go through all this if the viewing by the second grand jury of compelled self-incriminating statements were of no constitutional significance in the first place.

The Lawn Court then observed more broadly that an indictment could not be challenged based on the ground that it was supported by insufficient or "incompetent" evidence, citing Costello v. U.S. and Holt v. U.S. But the petitioners' argument in Lawn was not that the evidence before the grand jury was merely "incompetent," as was the case in both Costello and Holt, but that its use violated a separate and independent constitutional provision: the Self-Incrimination Clause. That is to say, Lawn's dictum conflates a claim that an indictment is invalid because the evidence before the grand jury was insufficient to sustain the indictment or was somehow unreliable, on the one hand, from the claim that the indictment is invalid because based on evidence whose use itself violates the Constitution.

In short, the Petitioners in Vogt are relying upon dicta from Calandra which in turn relies upon dicta from Lawn which is very poorly reasoned. Pretty weak sauce.

Posted by: Michael J.Z. Mannheimer | Feb 16, 2018 3:40:07 PM

But it also contains this quote - (“[A]n indictment based on evidence obtained
in violation of a defendant’s Fifth Amendment privilege is nevertheless valid.”). See United States v. Calandra, 414 U.S. 338, 346 (1974) - which the petitioner has relied upon heavily in its briefing.

Posted by: ScottM | Feb 14, 2018 11:51:52 AM

Calandra is a Fourth Amendment case, not a Fifth Amendment case. Calandra's claim was that he could not be asked questions in the grand jury proceeding regarding evidence that he claimed was seized as a result of an invalid search warrant. The Court held that, even if the warrant was invalid, the Fourth Amendment's exclusionary rule does not apply to grand jury proceedings.

Posted by: Michael J.Z. Mannheimer | Feb 2, 2018 2:52:59 PM

Based on the structure and language of the 5th amendment vs. the 6th amendment, it appears that Vogt has a better argument in this case But in United States v. Calandra, the Court held that a defendant could not attack a facially valid indictment based on the presentation of a compelled statement to a grand jury. So perhaps the line for when a criminal case begins should be when charges are brought, not when "judicial proceedings" begin?

Posted by: ScottM | Feb 2, 2018 2:45:37 PM

Three great articles on the history of the Fifth Amendment by Richard Harris. As far as I know they were never turned into a book, but should have been.
Taking the Fifth~I | The New Yorker

Apr 5, 1976 - The New Yorker, April 5, 1976 P. 44. ANNALS OF LAW about the 5th Amendment & a case involving it. On sept. 23, 1970 3 white men&2 white women held up a branch of the State St. Bank &Trust Co. in Boston They escaped with 826,000. As they were making their getaway/a policeman tried to stop them ...
Taking the Fifth~III | The New Yorker

Apr 19, 1976 - ANNALS OF LAW about the Fifth Amendment which protects individuals against self-incrimination and a case involving abrogation of this constitutional right.…
Taking the Fifth~II | The New Yorker

Apr 12, 1976 - The New Yorker, April 12, 1976 P. 43. ANNALS OF LAW about the Fifth Amendment which protects individuals against self-incrimination. Tells about the case of John Lilburne, in 16th cen. England. From his time on the right against self-incrimination was an established rule of English law generally.

Posted by: James Rose | Dec 31, 2017 11:55:13 AM


Yes, the case is in the Supreme Court on the assumption that his statements were compelled under Garrity v. New Jersey. The only question is whether their use in the probable cause hearing constitutes use in a "criminal case."

Posted by: Michael J.Z. Mannheimer | Dec 29, 2017 10:15:46 AM

One thing to note with regards to the internal investigation is that, based on the details in this Stafford Law blog by Jeffrey Mandell and Erika Bierma, the officer was required by departmental regulations to cooperate with the internal investigation, meaning his statements and actions in that investigation could be considered compelled. https://www.staffordlaw.com/blog/article/stafford-files-u.s.-supreme-court-amicus-brief-on-scope-of-5th-amendment-se/

Posted by: Nathan Curtiss | Dec 28, 2017 6:08:35 PM


It's not hard to distinguish Chavez v. Martinez. Police interrogation does not constitute part of a criminal case because there is no judicial proceeding. Once there is a judicial proceeding -- a grand jury proceeding or probable cause hearing -- it is now a criminal case.

Posted by: Michael J.Z. Mannheimer | Dec 28, 2017 2:43:14 PM


Thanks for the heads up. I just listened to the oral argument. Which judge was it that raised the Crimes Act of 1790? I'm not familiar with the voices.

I understood the reference to the 1790 Act as a suggestion that "accused" and "indicted" are not interchangeable, as sec. 29 of the Act uses both. Indeed, sec. 29 uses both the phrase "accused and indicted" and the phrase "accused or indicted." The judge's point, I take it, is that not all of those who are "accused" are "indicted" (or otherwise formally charged). Thus, one can be an "accused" even before formal charges are brought.

I do not see how that helps the defendant in that case, however. The Sixth Amendment is limited to "criminal prosecutions." The only question is when the "criminal prosecution" begins. All the discussion of who is an "accused" is a distraction. As one judge put it, the "accused" language answers the "who" question while the "criminal prosecutions" language answers the "when" question. All we care about in that case is the latter.

Defendant's best argument is the one that came out only on rebuttal: when a state criminal prosecution has begun, a federal criminal prosecution should be deemed to have begun as well when it involves the same nucleus of operative facts and when the state and federal authorities are working together, so that the acts of the one can be deemed the acts of the other.

Posted by: Michael J.Z. Mannheimer | Dec 28, 2017 2:39:57 PM

It might interest you to know that at least one circuit is open to extending Sixth Amendment protections to pre-charge plea bargaining; the Sixth Circuit recently heard oral argument en banc about it. (Here's the panel opinion.*) One of Trump's three appointees to the court suggested at oral argument that, as an originalist matter, the phrase "criminal prosecutions" can have a pre-charge meaning, given the usage of same or similar language in the Crimes Act of 1790.

Posted by: Asher Steinberg | Dec 27, 2017 3:26:36 PM

Poster El roam has a point. You do a good job of convincing me that the police officer should win. What you don't do a good job of is distinguishing Vogt from Chavez. So the question becomes how does one allow Vogt to win without overturning Chavez? The only way I can see that being done is by an excessively formal test, the kind of test that would appeal to Justice Thomas and no one else. It seems extraordinarily odd to me that the Constitution, as you read it, would allow the Executive to use force to compel a confession but not the Judiciary. Indeed, I can see lots of bad results that flow from such a reading.

Posted by: James | Dec 26, 2017 11:36:54 AM

Thanks for that post , So only the first case it seems , had to do , with compelling him ( but that case is a " fait accompli " ) and the second one , the issue it seems , is the use of it ( of the statements had been given by him ) . So , the use of it , is the issue , and not compelling a person to incriminate himself. However , if charged indeed ( at the first one ) he had to attack it at the time , or appeal somehow . If the prosecutor , is relying justifiably on the previous ruling , legally given , how can one claim now illegality of some sort ??

Beyond it , it seems that you ignore the philosophy of the right to stay silent , or of one person , not to incriminate himself . The nature of the case is not the real issue , but , that one person , wouldn't be forced , to testify against himself , or to incriminate himself , because of the cruelty or the inhuman dilemma a person would face so .Not human simply , and not efficient many times . A person , can't be forced to consider himself as enemy ( of himself ) . So , beyond formal analysis , or the wording or the text of the constitution , this is the broader purpose of course ( it is a universal concept in fact ) . It is not the nature of the case , but rather , the fundamental nature of the human being at stake here .

To be honest , very vague …..


Posted by: El roam | Dec 23, 2017 5:35:39 PM

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