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Argument preview: A deceptively complex Fifth Amendment question — use of compelled statements at a preliminary hearing

When certiorari was granted in City of Hays, Kansas v. Vogt, a surface reading of the record and the “Question Presented” made the case seem easy: Does the Fifth Amendment apply at a preliminary (or probable cause) hearing rather than just at trial? The constitutional text is familiar: “No person … shall be compelled in any criminal case to be a witness against himself.” In this case, the state of Kansas (which is not a party to this case) introduced an assumedly “compelled” statement from Matthew Vogt at a preliminary hearing, to try to establish that probable cause supported the criminal charges it had filed against him. But the result of the hearing was that criminal charges were dismissed, so there was no trial. Vogt then sued the city of Hays in federal court, alleging that the use of his compelled statements against him in the preliminary hearing violated his Fifth Amendment rights.

The district court dismissed the civil suit, saying that there was no constitutional violation “because the incriminating statements were never used at trial.” But the U.S. Court of Appeals for the 10th Circuit reinstated Vogt’s lawsuit, “concluding that the phrase ‘criminal case’ includes probable cause hearings.” That seemed right, because the constitutional text applies to “any criminal case,” not just criminal “trials.” As the panel put it, “the term ‘criminal case’ covers pretrial proceedings as well as the trial.”

But in its certiorari-stage reply brief, the city explained that the case is not that simple, because the question is not whether the constitutional phrase “criminal case” is limited to trial: “Our argument does not turn on when a ‘criminal case’ begins. Rather it depends on what uses of … compelled statements … render someone ‘a witness against himself.’” With that very different textual tilt, the argument on Tuesday, February 20, is likely to present more complexities for the justices than were first perceived.

Facts: A law enforcement setting yields an unusual context

This case involves a civil lawsuit, arising out of a criminal prosecution against a police officer that was dismissed for lack of probable cause but that cost the officer his job.

Matthew Jack Dwight Vogt worked as a police officer for the small municipality of Hays in the heart of Kansas. In a job interview with a police department in another Kansas city (Haysville), Vogt disclosed that he had “kept a knife” he had obtained while working as a Hays police officer. Haysville offered Vogt the job, but conditioned it on Vogt’s reporting the knife incident to Hays. After Vogt did so, the Hays police department directed him to file a more detailed report “in order to keep his job.” (In a controversial 1967 decision, Garrity v. New Jersey, the Supreme Court ruled that incriminating employee statements required by public employers as a condition of employment are “compelled” within the meaning of the Fifth Amendment.) Vogt submitted the required report, and then submitted a two-week notice of resignation from the Hays police department in order to accept the Haysville job. But after further investigation, the Hays police chief referred the knife matter (and Vogt’s statements) to the Kansas Bureau of Investigation, and Vogt was ultimately charged with two criminal counts stemming from his possession of the knife. Meanwhile, Haysville withdrew Vogt’s job offer because of the pending criminal investigation.

In cases not charged by grand jury, Kansas (like many jurisdictions) gives criminal defendants a right to a “preliminary examination” at which the state must establish probable cause if the criminal case is to continue. At Vogt’s preliminary hearing, the state introduced Vogt’s statements (and other evidence that was arguably the “fruit” of his statements). After the hearing, the state trial court dismissed the criminal charges against Vogt for lack of probable cause.

Vogt then sued Hays (along with others) in federal court, alleging that the use of his compelled statements at the preliminary hearing violated his Fifth Amendment privilege, and that he had lost his job as a result. But the district judge dismissed Vogt’s civil lawsuit, ruling that because Vogt’s statements had never been introduced against him at a criminal trial, there was no constitutional violation.

On Vogt’s appeal, the 10th Circuit ordered that his civil lawsuit against Hays be reinstated, because the Fifth Amendment’s “phrase ‘criminal case’ includes probable cause hearings.” The court of appeals noted “a circuit split … over the definition of a ‘criminal case’” and resolved that split in favor of Vogt’s probable-cause-hearing argument. The court apparently did not consider any further argument about the “use” of the statements.

The merits arguments go round and round

In its petition for certiorari, the city of Hays, represented by Toby Heytens of the University of Virginia’s Supreme Court clinic, presented this question: “Whether the Fifth Amendment is violated when statements are used at a probable cause hearing but not at a criminal trial.” The city now makes it clear that its arguments turn on the “use” of compelled statements in a non-trial context, and whether introduction of such statements at a non-trial proceeding makes the speaker a “witness against himself.” But this was apparently not what the 10th Circuit understood the issue to be. Vogt, represented by veteran Supreme Court advocate Joshua Rosenkrantz and his partner Kelsi Corkran, maintains that Hays has now “abandoned” the question that was “at the crux of the … dispute thus far.” We’ll see if any of the justices feel that the granted question does not fairly encompass the city’s current arguments.

On the merits, Hays argues that the Supreme Court has previously described the Fifth Amendment as a “trial right,” most significantly, in 1990’s United States v. Verdugo-Urquidez. Hays also relies on plurality opinions in Chavez v. Martinez and United States v. Patane suggesting that Fifth Amendment violations occur only upon introduction of statements “at trial” – although Chavez also used the phrase “in a criminal case.” Hays contends that the amendment creates “an evidentiary rule” for trials only (even if it also creates a privilege not to be “compelled” to make incriminating statements in any context). A probable cause hearing, unlike a trial, does not determine guilt. Because Vogt was never compelled to take the witness stand and his statements were never used against him at a trial, Hays argues, he was not “compelled … to be a witness against himself” under the Fifth Amendment and his federal lawsuit was properly dismissed.

In response, Vogt notes that his statements were undoubtedly “compelled” under Garrity, and that they were also “testimonial” under the Supreme Court’s confrontation clause and some Fifth Amendment precedents. (Hays responds that, testimonial or not, the right to confrontation has, like the Fifth Amendment, also been described by the court as a trial right.) Vogt argues that because his statements were introduced as evidence of his criminal guilt at the preliminary hearing, “for the specific purpose of pursuing his criminal conviction,” that use “rendered [him] a ‘witness against himself’ under any plausible definition of the term.” He notes that prior references to the Fifth Amendment as a “trial right” all came in cases “in which the Court had no reason to consider the use of compelled testimony in [other, non-trial] criminal proceedings.” Hays responds that evidence obtained in violation of the Fifth Amendment may be introduced before a grand jury. But on this point Vogt, as well as the United States even while opposing Vogt as amicus, argue that grand jury use is not at issue here, and that in any case grand juries are “unique” and their hearings occur not as part of a “criminal case” but prior to it.

Interestingly, a group of self-titled criminal procedure scholars as well as the National Fraternal Order of Police have filed amicus briefs on behalf of Vogt. It appears that for the FOP, the Garrity rights of law-enforcement officers outweigh any concern that everyday criminal defendants might benefit from Vogt’s position. Meanwhile, the United States, as well as 13 states, have weighed in as amicus on the city’s side. (As is often the case, the U.S. solicitor general has been granted permission to split the argument for Hays.)  The solicitor general’s brief focuses on the “use” question, arguing that the use of compelled statements at “pretrial proceedings where guilt and punishment are not adjudicated” is neither “incriminating” nor a Fifth Amendment violation. Unsurprisingly, Vogt responds that his statements were undoubtedly used to pursue his criminal guilt; the state was arguing, albeit unsuccessfully, that those statements showed incriminating probable cause of guilt so that the criminal case against Vogt could go forward.

There may be other questions at argument regarding the causal link between the use of the statements and the loss of Vogt’s job, although the court of appeals found causation sufficiently alleged and the issue is not really before the Supreme Court. Also, the record appears to contain no objection from Vogt at the preliminary hearing, but the parties seem to accept the question as well-presented here.

A final sidenote: Justice Neil Gorsuch will probably leave the bench for the oral argument in this case, which is second on the February 20 calendar. He has taken no part in orders in the case up to now and is likely recused because this case was pending before the 10th Circuit while he was a judge there.


A ruling for either side in this case would produce a multiplicity of potential consequences. Certainly the prospect of compelling criminal defendants to take the stand at preliminary hearings is a stunning one. Yet so too is the prospect of thousands of extra hearings to determine admissibility (for example, pre-preliminary hearing and pre-bail), as well as the possibility that internal police investigations into misconduct will be truncated (although this latter problem, if it is one, would seem to stem from Garrity rather than this case). Perhaps these extremes need not be reached; indeed, Hays presents a fallback argument that rather than rule broadly against the use of all compelled statements, the court could narrow the controversial Garrity immunity. Regarding the “use at trial” arguments, there is undoubtedly tension and ambiguity among the court’s precedents. Let’s hope this case will be one of the occasions when oral argument produces as much clarifying light as it does heat.

Recommended Citation: Rory Little, Argument preview: A deceptively complex Fifth Amendment question — use of compelled statements at a preliminary hearing, SCOTUSblog (Feb. 13, 2018, 1:56 PM),