Case No. 16-1495 | 10th Cir. Decision
The introduction of a defendant’s compelled statements at trial would plainly violate the Fifth Amendment privilege against self-incrimination. Does a similar violation occur when the government introduces a compelled statement at a probable cause hearing?
In the course of his work as a police officer in Hays, Kansas, Matthew Vogt came across a knife and, instead of reporting it, took it for his own personal use. When he later revealed what he had done, the department launched an internal investigation and ordered Vogt to provide a statement. Based on the investigation, the state filed criminal charges against Vogt. At a preliminary hearing to determine if probable cause existed, the state introduced evidence based on Vogt’s prior statements. The court determined that probable cause did not exist and dismissed the case.
The present litigation began when Vogt sued his former employer under 42 U.S.C. § 1983, arguing that the use of his statements at the preliminary hearing violated his Fifth Amendment right against self-incrimination. The district court found that Vogt did not properly allege a Fifth Amendment violation and dismissed the complaint. The Tenth Circuit reversed, finding that the Amendment protected against the introduction of Vogt’s statements from the probable cause hearing.
By its terms, the Fifth Amendment limits the privilege against self-incrimination to “any criminal case.” US Const. amend V. The City, however, does not argue that a probable cause hearing is not part of a criminal case. Rather, it argues that the nature of the privilege—protecting a defendant against being “compelled . . . to be a witness against himself”—means that a completed violation can only occur when the government introduces the defendant’s compelled statements in a criminal trial. The City cites cases in which the Court has referred to the Fifth Amendment protection as a trial right. Additionally, the City argues that its view is consistent with Fifth Amendment jurisprudence, most notably, the application of the Fifth Amendment in grand jury proceedings. Because a criminal defendant cannot attack an indictment based on the grand jury’s use of the defendant’s privileged statements, the City argues, it follows that defendants cannot claim the privilege to prevent the introduction of such statements in a hearing that takes the place of a grand jury.
Vogt replies that the language from prior cases describing the privilege as a “trial right” was dicta. He cites history to argue that the Founders expected the Fifth Amendment to apply in pretrial proceedings held to determine if criminal charges would move forward. He also notes that the government cannot introduce compelled self-incriminating statements in sentencing proceedings to refute the City’s claim that the right applies only at trial. The City’s claim about grand jury proceedings, Vogt further argues, merely demonstrates that the Fifth Amendment cannot be violated before indictment.
The United States has filed a brief in support of the City as amicus curiae.