The Fifth Amendment to the U.S. Constitution guarantees that “no person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. In February, the Supreme Court of the United States will hear City of Hays, Kansas v. Vogt (No. 16-1495), a case about the scope of that guarantee.

The Vogt case asks “whether the prosecution’s use of a defendant’s prior compelled statement used in a preliminary hearing as evidence to his guilt violates the Fifth Amendment?” Stafford Rosenbaum filed a brief on behalf of the National Association of Criminal Defense Lawyers (NACDL) and the American Civil Liberties Union (ACLU) urging the Court to answer the question with a “yes.”

Factual and Procedural Background

Vogt was a police officer for the City of Hays. In 2013, he applied for a police job with the City of Haysville. (Despite similar names, the cities are almost 200 miles apart.) During the hiring process, Vogt disclosed that he had kept a knife that he obtained while working as a Hays police officer. Haysville offered him a job, conditioned upon his returning the knife to the Hays police department.

When Vogt returned the knife, the Hays police chief opened an internal affairs investigation to determine whether the circumstances constituted a violation of department policy. As required by his job with the Hays police department, Vogt cooperated with the inquiry, including by giving a statement about his possession of the knife. Vogt then gave his two-week notice. The officer leading the internal investigation required Vogt to provide a more detailed statement. The police chief forwarded Vogt’s second statement to the Kansas Bureau of Investigation (KBI), which opened a criminal investigation. That investigation led to two felony criminal charges against Vogt. As a result of those charges, Haysville withdrew its job offer to Vogt.

Because the charges against Vogt were felonies, Kansas law entitled him to a preliminary hearing. The purpose of such a hearing is for a judicial officer to determine whether the prosecution has enough evidence to show probable cause and move forward to trial. At the preliminary hearing, the prosecution used the statements Vogt provided during the Hays police department’s internal investigation. The district court dismissed the charges because it concluded that, even with Vogt’s statements, the prosecution lacked probable cause to proceed.

Vogt then filed a federal civil rights suit, alleging that the use of statements he made during his employer’s internal investigation to initiate a criminal case against him violated the Fifth Amendment’s guarantee against self-incrimination. The district court rejected this theory. But, on appeal, the U.S. Court of Appeals for the Tenth Circuit held that the Fifth Amendment applies to preliminary hearings so that Vogt’s suit should have been allowed to proceed. The Supreme Court granted a writ of certiorari to resolve a disagreement among various federal courts of appeals about the scope of the self-incrimination guarantee.

The arguments made by NACDL and the ACLU

As amici, NACDL and the ACLU presented three arguments to the Court.

First, the constitutional text and Supreme Court precedent support the application of the Self-Incrimination Clause to preliminary hearings. The term “criminal case” means “an action, cause, suit, or controversy at law” or “a question contested before a court of justice.” Chavez v. Martinez, 538 U.S. 760, 766 (2003) (plurality) (citing Blyew v. United States, 13 Wall. 581, 595 (1872)). While Chavez did not pinpoint when a “criminal case commences” for Fifth Amendment purposes, it clearly did not limit the guarantee against use of compelled statements to trial, stating that “‘[a] criminal case’ at the very least requires the initiation of criminal proceedings.” Id. at 766. It follows that an adversarial, evidentiary proceeding held after a criminal complaint has been filed by a prosecutor, designed for a judicial officer to determine whether there is sufficient evidence proceed to trial, is part of the criminal case at which compelled self-incriminating statements may not be used.

The Self-Incrimination Clause also applies by its own terms because a preliminary hearing is a stepping stone to conviction. When a preliminary hearing is held, the judicial officer’s finding of probable cause is a necessary precondition for the prosecution to proceed to criminal conviction. That means that the preliminary hearing—assuming the prosecution prevails at that hearing—moves the defendant one step closer to conviction; and if the prosecution does not prevail the criminal case is over. Using a defendant’s compelled statement against him in such a hearing is, therefore, part and parcel of the defendant’s path to conviction.

Second, a determination that the Self-Incrimination Clause does not apply to preliminary hearings would severely prejudice defendants. Preliminary hearings require only probable cause—a much lower bar than the beyond-a-reasonable-doubt standard used at criminal trials. Allowing a prosecutor to clear that bar with a defendant’s self-incriminating statement undermines the Constitution and the purposes of a preliminary hearing. Allowing cases to proceed by using a defendant’s self-incriminating statement is inefficient and unjust. Postponing consideration of challenges under the Fifth Amendment harms defendants and distorts the criminal justice system. Requiring a defendant to wait after the preliminary hearing to adjudicate the admissibility of their own statement is too late. Some defendants will plead guilty long before reaching such an adjudication. This is true because very few criminal cases—fewer than a handful of every 100 prosecutions—proceed to trial. As a result, a preliminary hearing may be the only “day in court” that a defendant has.

Third, none of the concerns cited by the U.S. Department of Justice in support of its position that the Tenth Circuit decision should be reversed can withstand scrutiny. Moreover, the government’s position carries a chilling implication. By the Government’s logic, nothing would prevent a prosecutor from compelling a defendant to take the witness stand and forcing him to testify at a preliminary hearing, as long as the testimony was not used at trial. Such a scenario is inimical to the absolute protections the Court has long understood the Self-Incrimination Clause to confer. A ruling that countenances such a practice would be a substantial and deleterious change in constitutional doctrine.


This case presents a significant self-incrimination question. The Court’s decision could significantly affect Fifth Amendment jurisprudence. Oral argument will be held February 20. Stafford Rosenbaum’s Appellate Practice Blog will report on further developments as the case progresses

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