John Simon, Associate Member, University of Cincinnati Law Review
Introduction:
In May 2015, Matthew Vogt filed a complaint in the United States District Court for the District of Kansas alleging a violation of 42 U.S.C. § 1983.[1] Specifically, Vogt alleged that the City of Hays, in addition to other parties, violated his right to be free from self-incrimination.[2]
The allegations stemmed from an incident in late 2013. Vogt, at the time of the incident, was employed as a police officer with the City of Hays; he applied for a position with the police department in the neighboring city of Haysville.[3] During the application process, Vogt disclosed that he illegally retained a knife he obtained while working as a Hays police officer.[4]
Despite Vogt’s disclosure, he was offered a position as an officer with the Haysville police department. However, this offer was conditioned upon Vogt reporting to the Hays police department his possession of the knife.[5]
Vogt satisfied the condition by reporting to the Hays police department that he retained possession of the knife.[6] Vogt was ordered to complete a written report concerning his possession of the knife; Vogt submitted a vague one-sentence report. Subsequently, Vogt offered the Hays police department his two-week resignation notice, intending to accept Haysville’s offer.[7]
During this period, the Hays police chief began an internal investigation into Vogt’s possession of the knife.[8] A Hays police officer asked Vogt to provide a more detailed statement regarding his possession of the knife so that the officer could keep his job with the Hays police department. Vogt provided the statement which led the Hays police to additional evidence.[9]
Using Vogt’s statements and the additional evidence, the Hays police asked the Kansas Bureau of Investigation to open a criminal investigation.[10] This investigation prompted the Haysville police department to withdraw its offer to Vogt. Vogt was charged in Kansas state court with two felony counts related to his possession of the knife.[11] The charges were ultimately dismissed after the state district court determined that probable cause was lacking.[12]
Vogt’s case presented an undecided issue within Fifth Amendment jurisprudence: does the Fifth Amendment protect against the introduction of compelled statements at pre-trial proceedings? A split has developed among the circuits; some circuits maintain that the Fifth Amendment protects against the introduction of compelled statements at any level of a criminal proceeding, while others only recognize the Fifth Amendment as a trial right.
Procedural Posture:
In his complaint with the District Court of Kansas, Vogt argued that his Fifth Amendment rights were violated when he was compelled to provide additional information to the Hays police department and it was given to an investigator to be used in criminal proceedings against him.[13] The District Court ultimately dismissed the allegations finding that Vogt failed to state a violation of his constitutional rights because the Fifth Amendment served as a trial right, not a pre-trial right.[14] Vogt appealed his decision to the Tenth Circuit Court of Appeals.
Fifth Amendment Jurisprudence:
The Fifth Amendment maintains that no person “shall be compelled in any criminal case to be a witness against himself.”[15] Historically, the privilege against self-incrimination developed from the eventual rejection of the inquisitorial system—requiring that persons admit their crimes under oath—utilized in Star Chamber proceedings.[16] While the phrase protecting against self-incrimination remains brief, its meaning has been expanded over the course of time. The Supreme Court stated that the Fifth Amendment involves two major interests: “the preservation of an accusatorial system, which goes to the integrity of the judicial system, and the preservation of personal privacy from unwarranted governmental intrusion.”[17] The Court further noted that the “sole concern [of the privilege] is, as its name indicates, with the danger to a witness forced to give testimony leading to the infliction of penalties affixed to the criminal acts.”[18] Thus, the privilege against self-incrimination precludes the requirement of providing testimony; the protections also extend into the realm of police interrogations.
The Fifth Amendment’s extension into police interrogations stems from the Supreme Court’s concerns regarding the inherently overbearing nature of custodial interrogations.
Demonstrating these concerns, the Supreme Court ruled in Miranda v. Arizona that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.”[19] Subsequent decisions have created exceptions narrowing the Miranda warning requirement. For instance, the Supreme Court permits the use of statements taken in violation of Miranda when the statements were obtained pursuant to a public safety concern,[20] or when the statements are used solely for impeachment purposes.[21]
Regarding the scope of Fifth Amendment protections, the Supreme Court has provided minimal guidance. For instance, in United States v. Verdugo-Urguidez, the Court, addressing the scope of protections offered to illegal aliens, noted, in dicta, that the Fifth Amendment constitutes a trial right.[22] Further, in Mitchell v. United States, the Court, determining whether self-incriminatory statements could be introduced at sentencing, determined that the Fifth Amendment’s protections extended to sentencing hearings—constituting protection beyond a trial.[23] However, the Court is less clear regarding the time when Fifth Amendment protections become applicable. In Chavez v. Martinez, Justice Thomas, writing the plurality opinion, held that the Court “need not decide today the precise moment when a ‘criminal case’ commences; it is enough to say that police questioning does not constitute a ‘case’ any more than a private investigator’s pre-complaint activities constitute a ‘civil case.’[24] At the same time, introduction of statements obtained in violation of rules forbidding governmental coercion is not allowed.[25] On the other hand, in his dissenting opinion, Justice Kennedy contended that the Fifth Amendment’s protections are not triggered once incriminating statements are introduced at trial; a violation occurs the “moment torture or its close equivalents are brought to bear. Constitutional protection for a tortured suspect is not held in abeyance until some later criminal proceeding takes place.”[26]
Because of the Supreme Court’s opinion in Chavez v. Martinez, a split emerged among the Circuits as to what constitutes a “criminal case” in the context of the Fifth Amendment’s protections.
Third Circuit:
In 2003, the Third Circuit held in the case of Renda v. King, that “a plaintiff may not base a § 1983 claim on the mere fact that the police questioned her in custody without providing Miranda warnings when there is no claim that the plaintiff’s answers were used against her at trial.”[27]
In that case, Renda allegedly made a false claim to police officers that her boyfriend had abused her in their home.[28] Officers interrogated the boyfriend and then acquired a written statement from Renda without giving her any Miranda warnings. Renda failed to include the domestic incident in the statement.[29] When officers asked why the incident was not included, Renda stated that she had lied about the abuse.[30] Charges were brought against Renda for making a false claim; due to evidentiary issues, the prosecution ultimately dropped the charges prior to trial.[31]
Renda filed a claim against the police department for violating her constitutional rights, including her right to be free from self-incrimination, among other violations. The District Court, during trial, dismissed the coerced interrogation claim.[32]
On appeal, the Third Circuit maintained that a self-incrimination violation does not occur when a statement is made in the absence of Miranda warnings.[33] Instead, a violation occurs when those statements are used at trial.[34] Supporting its decision, the Third Circuit cited the Supreme Court’s decision in Chavez in which six Justices held that “‘failure to read Miranda warnings to Martinez did not violate Martinez’s constitutional rights and cannot be grounds for a § 1983 action.’”[35] Justice Thomas reasoned that the prophylactic rule announced in Miranda provided safeguards to the Self-Incrimination Clause, and that rules safeguarding constitutional rights do not expand the scope of the constitutional rights themselves.[36]
Therefore, in Renda’s case, there was no violation of the Fifth Amendment because the charges were dropped prior to the introduction of Renda’s incriminating statements at trial.
Tenth Circuit
Revisiting Matthew Vogt’s claim that his constitutional rights were violated, the Tenth Circuit opted to take an expansive view of the Fifth Amendment’s protections. While finding that the Supreme Court failed to adequately determine the scope of the Fifth Amendment’s protections, the Tenth Circuit declared that “[t]o decide this issue, we join the Second, Seventh, and Ninth Circuits, concluding that the right against self-incrimination is more than a trial right.”[37] Coming to this conclusion, the Tenth Circuit grounded its reasoning in the text of the Fifth Amendment as well as the Framers’ understanding of the right against self-incrimination.
In the opinion, the Tenth Circuit noted that the language of the Fifth Amendment remains broader than similar language used in other Amendments.[38] For instance, the Sixth Amendment maintains that “in all criminal prosecutions [emphasis added]” the accused maintains various rights including the right to a speedy trial, the right to confront witnesses, and the right to counsel.[39] According to the Tenth Circuit, the term “criminal case” seems to embody the term “criminal prosecution.”[40]
The Tenth Circuit, further, examined the definition of the term “criminal case” as it was used when the Constitution was written. The court noted that “‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning…’”[41] Utilizing Webster’s 1828 dictionary as an authoritative source, the Tenth Circuit found that the term “case” was defined as “[a] cause or suit in court.”[42] Further, the term “case” was nearly synonymous with the term “cause” as Webster’s defined “cause” as “a suit or action in court.”[43] Thus, the Framers’ understanding of the term “case” was broader than just the trial itself. This understanding is enhanced by the Supreme Court’s opinion in Blyew v. United States, in which the Court found that “‘[t]he words “case” and “cause” are constantly used as synonyms in statutes and judicial decisions, each meaning a proceeding in court, a suit, or action.’”[44]
The Tenth Circuit also examined the ratification of the Fifth Amendment as evidence of the Framers’ broad understanding of its application. When drafting the Amendment, James Madison omitted the term “criminal case” and instead intended for the protections to be extended to both criminal and civil matters.[45] Representative Laurence proposed, instead, to confine the Fifth Amendment to criminal cases, and evidence suggests that the consensus was that the protection against self-incrimination was not limited to one’s trial.[46] For instance, if at the time of ratification, the Fifth Amendment applied only to criminal trials, then the right would serve no purpose as criminal defendants were considered incompetent as witnesses.[47] Additionally, the Sixth Amendment was considered applicable during the court phase of prosecutions, including trials; the right against self-incrimination was grouped into Fifth Amendment privileges.[48]
To conclude, the Tenth Circuit ultimately determined that nothing suggested that the Framers intended to confine the Fifth Amendment to criminal trials. Therefore, use of Vogt’s statements at a probable cause hearing could violate his rights against self-incrimination.[49]
Recommendation:
As the Tenth Circuit noted, “Different approaches have emerged because the Chavez Court declined to pinpoint when a ‘criminal case’ begins.”[50] Clearly, the circuits rely upon the Chavez case as support for their respective viewpoints. However, each circuit takes the views of the divergent plurality opinions offered by the Justices. The Third Circuit primarily relied upon Justice Thomas’s opinion finding that a Fifth Amendment violation only occurs once incriminating statements, compelled by the government, are introduced at trial. On the other hand, the Tenth Circuit followed Justice Kennedy’s argument that the Fifth Amendment “protects an individual from being forced to give answers demanded by an official in any context when the answers might give rise to criminal liability in the future.”[51] Reading the supporting materials, courts should apply the standard adopted by the Tenth Circuit, holding that the Fifth Amendment applies to incriminating statements made pre-trial.
The Tenth Circuit’s standard properly observes the textual and historical arguments supporting the Fifth Amendment’s application to pre-trial hearings and provides individuals with the protection necessary to preclude the giving of incriminating statements in the face of mounting coercive pressures.
Observing the textual argument, the Tenth Circuit properly noted that the language used in the Fifth Amendment sweeps more broadly than similar language utilized in other Amendments. Looking through the lens of the Framers, the Tenth Circuit specified that the term “case” means “[a] cause or suit in court.”[52] Thus, its application refers to any legal proceeding pertaining to criminal sanctions, which would include any pre-trial activities. Further, the historical argument logically infers that the Amendment must have been intended to apply in the pre-trial context primarily because courts did not view criminal defendants as competent witnesses. Thus, the Fifth Amendment’s protections would be irrelevant unless applied in the pre-trial context.
While the arguments listed above provide a legal basis for the conclusion that the Fifth Amendment’s protections should be broadly applied, the Tenth Circuit’s standard provides necessary protections to defendants during significant stages of the criminal process.
While trials require the factfinder to find guilt beyond a reasonable doubt, preliminary hearings require only that the judicial officer find probable cause to push the case through the criminal process.[53] The probable cause standard is a low burden of proof. As the National Association of Criminal Defense Lawyers and American Civil Liberties Union note, “[i]n most cases, a self-incriminating statement can, on its own, satisfy any [probable cause standard defined by a court] and allow the felony charge to proceed.”[54] Thus, the case would proceed on evidence that would be inadmissible at the defendant’s actual trial. This type of practice carries significant concerns. First, in a system already dictated by guilty pleas, permitting self-incriminating statements at pre-trial proceedings would only serve to increase the number of guilty pleas accepted.[55] Second, prosecutors would be more inclined to withhold certain arguments or pieces of evidence under the premise that less evidence would be necessary to secure a trial.[56] Finally, prosecutors would have, in effect, a second attempt to convict the defendant; in the event that the defendant is not pressured to accept a plea bargain, the prosecutor can simply attempt to convict the defendant at trial.[57]
Conclusion:
The text of the Constitution and the Fifth Amendment’s historical development support the notion that the Fifth Amendment’s protections extend beyond a defendant’s trial. Further, policy arguments suggest that a defendant can only be protected from abuse if the Fifth Amendment protects against self-incrimination at criminal proceedings prior to trial.
Considering that the Supreme Court
ultimately found that it improvidently granted certiorari in Vogt’s case, it is
unclear at what time the Court will consider settling the Circuit split
regarding the commencement of a “criminal case.”
[1] Vogt v. City of Hays, Kan., CIV.A. 15-1150-MLB, 2015 WL 5730331, at *1 (D. Kan. Sept. 30, 2015).
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] Id.
[13] Id. at *2.
[14] Id. at *5.
[15] U.S. Const. amend. V.
[16] “Fifth Amendment: Rights of Persons,” Government Publishing Office, https://www.gpo.gov/fdsys/pkg/GPO-CONAN-2013/pdf/GPO-CONAN-2013-10-6.pdf (accessed November 22, 2018); see also, The Editors of Encyclopaedia Britannica, “Court of Star Chamber,” Encyclopaedia Britannica, https://www.britannica.com/topic/Court-of-Star-Chamber (accessed November 28, 2018) (describing the Star Chamber as a court supporting the king’s prerogatives and lacking safeguards offered by common-law procedures).
[17] Tehan v. U.S. ex rel. Shott, 382 U.S. 406, 415 (1966).
[18] Ullmann v. United States, 350 U.S. 422, 438-39 (1956)
[19] Miranda v. Arizona, 384 U.S. 436, 444 (1966)
[20] See New York v. Quarles, 467 U.S. 649, 656 (1984) (finding that “the doctrinal underpinnings of Miranda [do not] require that it be applied in all its rigor to a situation in which police officers ask questions reasonably prompted by a concern for the public safety”).
[21] See Harris v. New York, 401 U.S. 222, 222 (1971) (holding that “[s]tatement[s] inadmissible against a defendant in the prosecution’s case in chief…may…be used for impeachment purposes”).
[22] U.S. v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990).
[23] Mitchell v. U.S., 526 U.S. 314, 330 (1999).
[24] Chavez v. Martinez, 538 U.S. 760, 767 (2003).
[25] Id.
[26] Id. at 789-90.
[27] Renda v. King, 347 F.3d 550, 552 (3d Cir. 2003).
[28] Id.
[29] Id.
[30] Id.
[31] Id. at 553.
[32] Id.
[33] Id. at 557-58.
[34] Id. at 558.
[35] Id. (citing Chavez v. Martinez, 538 U.S. 760, 789 (2003)).
[36] Id.
[37] Vogt v. City of Hays, Kansas, 844 F.3d 1235, 1241-42 (10th Cir. 2017).
[38] Id. at 1242.
[39] Id.; see U.S. Const. amend. VII.
[40] Id.
[41] Id. (citing United States v. Sprague, 282 U.S. 716, 731).
[42] Id. at 1243 (citing Noah Webster, Case, An American Dictionary of the English Language (1st ed. 1828)).
[43] Id. (citing Noah Webster, Cause, An American Dictionary of the English Language (1st ed. 1828)).
[44] Id. at 1243-44 (citing Blyew v. United States, 80 U.S. 581, 595 (1871)).
[45] Id. at 1244.
[46] Id.
[47] Id. at 1245; see Ferguson v. Georgia, 365 U.S. 570, 574 (1961)).
[48] Id.
[49] Id. at 1252.
[50] Id. at 1240.
[51] Chavez, 538 U.S. at 791.
[52] Vogt, 844 F.3d at 1243 (citing Noah Webster, Case, An American Dictionary of the English Language (1st ed. 1828)).
[53] Brief for the National Association of Criminal Defense Lawyers and American Civil Liberties Union as Amicus Curiae, p. 18, Vogt. v. City of Hays, Kansas, 844 F.3d 1235 (2017).
[54] Id. at p. 19.
[55] Id. at p. 20.
[56] Id. at p. 22.
[57] Id. at p. 23.
