Supreme Court Hears Oral Argument About Fifth Amendment Rights At Pretrial Proceedings

Posted On Monday, February 26, 2018

What Happened

On February 20 the Supreme Court heard oral argument in City of Hays v. Vogt, a case addressing whether the government’s introduction of a compelled statement at a probable cause hearing violates the Fifth Amendment.

The Rundown

Vogt was an officer with the Hays Police Department in Kansas when he applied for a different job with the Haysville Police Department.  Haysville offered Vogt the position, but conditioned acceptance on Vogt’s disclosure to the Hays PD that he kept a knife he obtained while on the job.  Vogt disclosed this information to Hays, which demanded that he make a more detailed statement or he would lose his job.  Vogt made the detailed statement requested, resigned, and accepted the job with Haysville. 

The Hays PD referred Vogt for prosecution based on his disclosure. The State charged him with a crime and the Haysville PD rescinded his job offer. The State introduced Vogt’s statement to the Hays PD at his preliminary hearing, though it ultimately dropped the charges against him.

Vogt sued both cities.  Relying on the Supreme Court’s 1967 holding in Garrity v. New Jersey that public employees’ statements are compelled when made under threat of termination, Vogt argued that the use of his compelled statements against him in the preliminary hearing violated the Fifth Amendment.

The District Court dismissed Vogt’s civil lawsuit because in its view, Vogt’s Fifth Amendment right was not violated because the compelled statements were never used against him at a criminal trial.  The Tenth Circuit reinstated the case, finding that the Fifth Amendment’s use of “criminal case” includes probable cause hearings. 

At oral argument last week, the City of Hays argued that the Fifth Amendment only applies “during a proceeding where that person’s guilt or punishment are adjudicated.”  An attorney for the United States clarified their position that while a defendant cannot be compelled to incriminate themselves at a preliminary hearing, the admission of their previously compelled statements in that type of proceeding would not violate the Fifth Amendment.  Vogt’s attorney maintained their position that compelled statements can never be used in a preliminary hearing or any other part of a criminal case.

Oral argument proved complicated as the Justices had genuine concerns about major factual issues in the case, including whether Vogt objected to the use of the statements at the preliminary hearing; whether Vogt’s statements were actually compelled; whether the statements were even used adversely; and whether any causation theory supported Section 1983 damages.  These issues led the Court to suggest that maybe they should not have taken the matter at all and that they may consider dismissing the case as improvidently granted (known as issuing a “DIG”). 

For the Record

Justice Ginsburg noted that the City of Hays’ position “shrink[s] to almost a vanishing point the possibility of using the Fifth Amendment . . . because . . . upwards of 95 percent of cases are disposed of by plea bargaining.”  She added that by making this argument “you’re saying effectively the Fifth Amendment, which is considered very important, is out of the picture in most criminal cases.” 

The Take Away

The Court’s ruling in this case—if they issue a substantive decision—will have significant implications for criminal prosecutions.  A broad holding for Vogt, for example, could necessitate trial-type suppression hearings for all pretrial proceedings in which statements are admitted.

If you have been compelled to make a statement and you want to ensure your Fifth Amendment rights are protected, please contact one of our Attorneys today.