The Fifth Amendment’s Self Incrimination clause prohibits the use of a defendant’s compelled statements at trial. Does this prohibition also apply at the preliminary hearing? That is the question the Supreme Court sought to answer in City of Hays v. Vogt.

Background on City of Hays v. Vogt

In City of Hays v. Vogt, Vogt, a police officer, was offered a job with the City of Haysville on the condition that he submit a written statement about possible misconduct at his previous job. Vogt complied, and was criminally charged in state court. At the probable cause hearing, the prosecutor introduced Vogt’s written statement. Although the charges were ultimately dismissed, Vogt sued the City, arguing that the City violated his Fifth Amendment rights when it used his written statement at the hearing.

The district court dismissed Vogt’s complaint, reasoning that the Fifth Amendment’s self incrimination clause is a trial right, and thus only applies in a trial. The Tenth Circuit reversed, holding that the self-incrimination clause also applies to pretrial proceedings. The City petitioned for review, and the Supreme Court granted cert to resolve a circuit split on this question.

While the Supreme Court has yet to issue a decision, the oral argument provides insight into how the Justices may rule.

The City’s Arguments

Seeking to uphold the district court’s ruling, the City argued that the Fifth Amendment can only be violated when a defendant’s compelled statement is used at trial.

Some justices were clearly skeptical of the City’s argument. Justice Ginsburg, for example, pointed out that 95% of criminal cases are disposed of through plea bargaining, and asked whether agreeing with the City would push the Fifth Amendment “out of the picture in most criminal cases.” The City answered that even if the the Fifth Amendment is not violated until the compelled statements are used at trial, one may assert the privilege against self-incrimination before trial.

Justice Kagan asked whether a preliminary hearing is part of a “criminal case,” noting that this is the term used by the text of the Fifth Amendment. The City agreed that a preliminary hearing is part of a criminal case, but pointed out that the self-incrimination clause does not apply to a competency hearing, even though a competency hearing may also be described as being part of a criminal case.

Lastly, Justice Breyer asked whether a defendant may prevent the use of his compelled statement in a grand jury proceeding. The City responded that there is no such precedent, but quickly added that the defendant can suppress any unconstitutionally obtained evidence at trial, so there can be no real harm done.

Towards the end of the City’s argument, several Justices asked questions relating to procedural issues in this case, raising the possibility that Vogt may have failed to preserve certain arguments in the proceedings below.

The United States argued as amicus in support of the City, and its argument at the outset largely mirrored the City’s position.  During its argument, Justice Kagan asked whether, according to its position, the government may compel a defendant to testify at a probable cause hearing, or draw an adverse inference if the defendant refused. The government responded that it may, but explained that the government would have to grant immunity for the testimony, and in any event the defendant cannot be found guilty at a probable cause hearing. At this time Justice Sotomayor interrupted and remarked that a defendant who loses a probable cause hearing faces an increased risk of conviction.

The United States also argued that a holding in favor of Vogt in this case would threaten to “gum up the works.”  For example, a defendant may be forced to litigate fact-intensive suppression issues at the probable cause hearing instead of before trial, and there would be complicated questions about what a defendant must argue to preserve his suppression claims. Justice Sotomayor retorted that there are a number of States that already follow this procedure, and none of them have experienced the difficulties that the government predicted.

Vogt’s Arguments

Vogt began with a simple textual argument: the text of the Fifth Amendment employs the term “criminal case,” and thus its application cannot be limited to a “criminal trial.”

Justice Breyer remarked that Vogt’s position would be a “major change” in the law, and then asked whether his argument has been properly preserved. He noted that Vogt appears have failed to object in state court when his compelled statement was introduced at the probable cause hearing. Vogt’s counsel responded that this is not in the record because the City sought cert before issues of waiver could even be raised.

Justice Alito spoke next, and called the case “odd.” He noted that it is uncertain whether Vogt would be able to establish proximate causation for his § 1983 claim. Justice Sotomayor agreed, adding that there is also substantial question as to whether Vogt’s statements were even “compelled.”  Hearing these concerns, Vogt’s counsel suggested that he would have no objection if the Court simply DIG’d (dismissed as improvidently granted) the case.

When the argument returned to the merits, Justice Sotomayor briefly described the circuit split on the question presented, and asked, rhetorically, whether the works have been “gummed up” in the circuits that have answered this question in favor of Vogt.  “There is no evidence they’ve been gummed up” was Vogt’s reply.

Justice Alito then returned to the question of whether a ruling in favor of Vogt would change the law governing whether defendants may raise Fifth Amendment claims in the context of grand jury proceedings. In contrast to the City’s argument, Vogt argued that the clause does, in fact, apply in a grand jury proceeding. However, because courts lack the authority to interfere with the grand jury, a ruling in favor of his position would not upset the established precedents governing what defendants may challenge in a grand jury proceeding.  Justice Kagan appeared satisfied with the answer.

Evidently concerned about the scope of a ruling in favor of Vogt, Justice Alito then asked Vogt to distinguish a probable cause hearing from a competency hearing or a Gerstein hearing. A competency hearing is different, Vogt explained, because it does not usually require incriminating statements from the defendant. A Gerstein hearing, Vogt explained, is not a part of a criminal case, and so the Fifth Amendment does not apply.

Before Vogt’s argument ended, Justice Sotomayor again raised the question of whether Vogt’s statements were even compelled, and Justice Alito questioned how Vogt would prove damages.

How The Supreme Court May Rule

At least three members of the Court expressed the view that the City’s position was too narrow for an interpretation of the scope of the Fifth Amendment and no Justice appeared eager to accept the City’s arguments. A ruling in favor of the City is thus unlikely. While some members of the Court were also reluctant to accept Vogt’s arguments wholesale, it may issue a narrow ruling for Vogt confining its holding to the probable cause hearing.

This post is by Sarah Kelley, a 2L at the American University – Washington College of Law, with editorial input from a member of our firm.