Simon, Associate Member, University of
Cincinnati Law Review
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. Specifically, Vogt alleged
that the City of Hays, in addition to other parties, violated his right to be
free from self-incrimination.
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. During the application
process, Vogt disclosed that he illegally retained a knife he obtained while
working as a Hays police officer.
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.
Vogt satisfied the condition by
reporting to the Hays police department that he retained possession of the
knife. 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
During this period, the Hays police
chief began an internal investigation into Vogt’s possession of the knife. 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.
Using Vogt’s statements and the
additional evidence, the Hays police asked the Kansas Bureau of Investigation
to open a criminal investigation. 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. The charges were
ultimately dismissed after the state district court determined that probable
cause was lacking.
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.
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
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. Vogt appealed his decision
to the Tenth Circuit Court of Appeals.
The Fifth Amendment maintains that
no person “shall be compelled in any criminal case to be a witness against
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. 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.” 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.” Thus, the privilege
against self-incrimination precludes the requirement of providing testimony;
the protections also extend into the realm of police interrogations.
Fifth Amendment’s extension into police interrogations stems from the Supreme
Court’s concerns regarding the inherently overbearing nature of custodial
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.” 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, or when the statements
are used solely for impeachment purposes.
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. 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. 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.’ At the same time,
introduction of statements obtained in violation of rules forbidding
governmental coercion is not allowed. 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.”
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.
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
In that case, Renda allegedly made a
false claim to police officers that her boyfriend had abused her in their home. 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. When officers asked why
the incident was not included, Renda stated that she had lied about the abuse. Charges were brought
against Renda for making a false claim; due to evidentiary issues, the
prosecution ultimately dropped the charges prior to trial.
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.
On appeal, the Third Circuit
maintained that a self-incrimination violation does not occur when a statement
is made in the absence of Miranda
Instead, a violation occurs when those statements are used at trial. 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.’” 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.
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.
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.” 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
In the opinion, the Tenth Circuit
noted that the language of the Fifth Amendment remains broader than similar language
used in other Amendments. 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. According to the Tenth
Circuit, the term “criminal case” seems to embody the term “criminal
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…’” 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.” Further, the term “case”
was nearly synonymous with the term “cause” as Webster’s defined “cause” as “a
suit or action in court.” 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.’”
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. 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. 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. Additionally, the Sixth
Amendment was considered applicable during the court phase of prosecutions,
including trials; the right against self-incrimination was grouped into Fifth
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.
As the Tenth Circuit noted, “Different
approaches have emerged because the Chavez Court declined to
pinpoint when a ‘criminal case’ begins.” 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.” Reading the supporting
materials, courts should apply the standard adopted by the Tenth Circuit,
holding that the Fifth Amendment applies to incriminating statements made
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.” 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
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.” 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. 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. 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.
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.”
 Vogt v. City of Hays, Kan., CIV.A.
15-1150-MLB, 2015 WL 5730331, at *1 (D. Kan. Sept. 30, 2015).
 Id. at *2.
 Id. at *5.
U.S. Const. amend. V.
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
(accessed November 28, 2018) (describing the Star Chamber as a court supporting
the king’s prerogatives and lacking safeguards offered by common-law
 Tehan v. U.S. ex rel. Shott, 382 U.S.
406, 415 (1966).
 Ullmann v. United States, 350 U.S. 422,
 Miranda v. Arizona, 384 U.S. 436, 444
 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”).
 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”).
 U.S. v. Verdugo-Urquidez, 494 U.S. 259,
 Mitchell v. U.S., 526 U.S. 314, 330
 Chavez v. Martinez, 538 U.S. 760, 767
 Id. at 789-90.
 Renda v. King, 347 F.3d 550, 552 (3d
 Id. at 553.
 Id. at 557-58.
 Id. at 558.
 Id. (citing Chavez v. Martinez, 538 U.S. 760, 789 (2003)).
 Vogt v. City of Hays, Kansas, 844 F.3d
1235, 1241-42 (10th Cir. 2017).
 Id. at 1242.
 Id.; see
U.S. Const. amend. VII.
 Id. (citing United States v. Sprague,
282 U.S. 716, 731).
 Id. at 1243 (citing Noah Webster, Case, An
American Dictionary of the English Language (1st ed. 1828)).
 Id. (citing Noah Webster, Cause, An
American Dictionary of the English Language (1st ed. 1828)).
 Id. at 1243-44 (citing Blyew v. United States, 80 U.S. 581, 595
 Id. at 1244.
 Id. at 1245; see Ferguson v. Georgia, 365 U.S. 570, 574 (1961)).
 Id. at 1252.
 Id. at 1240.
 Chavez, 538 U.S. at 791.
 Vogt, 844 F.3d at 1243 (citing Noah
Webster, Case, An American Dictionary of the English
Language (1st ed. 1828)).
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).
 Id. at p. 19.
 Id. at p. 20.
 Id. at p. 22.
 Id. at p. 23.