Reading the Fifth: Supreme Court Exercises its Right to Remain Silent on What Comprises a “Criminal Case”

BACKGROUND

The Self-Incrimination Clause of the Fifth Amendment protects individuals from being compelled to bear witness against themselves in a criminal case. Courts have struggled with the scope of this protection, particularly regarding what comprises a “criminal case.” Does the term extend to pre-trial proceedings, such as a bail hearing? Has a person’s Fifth Amendment right against self-incrimination been violated if the compelled statement in question is never used in a court of law?

Over the past thirty years, the Supreme Court has never directly resolved the question of what constitutes a “criminal case.” In dicta from United States v. Verdugo-Urquidez (1990), the Supreme Court indicated that the Fifth Amendment right was merely a trial right. But later, in Mitchell v. United States (1999) the Supreme Court indicated that the right extended to sentencing hearings.

The question of what comprises a criminal case was more recently addressed in Chavez v. Martinez (2003). In his plurality opinion, Justice Clarence Thomas declared that a statement was not a violation of the Fifth Amendment right against self-incrimination where the individual first hadn’t been charged with a crime and where the individual’s statements had not been used in a criminal case. Thomas further wrote:

“Mere coercion doesn’t violate the self-incrimination clause minus use of compelled statements in a criminal case against the witness…a ‘criminal case’ at the very least requires the initiation of legal proceedings.”

Three other justices disagreed, arguing that self-incrimination is complete the moment a confession is compelled, regardless of whether the statement is used at trial.

After the opinions in Chavez were released, a circuit split developed over the definition of a criminal case under the Fifth Amendment.

THE ISSUE

Does the Fifth Amendment right against self-incrimination include statements compelled in pre-trial proceedings?

THE SPLIT

The Third, Fourth and Fifth Circuits resolved this question in favor of Justice Thomas’s view, holding that the right against self-incrimination is only a trial right. In Renda v. King (2003), the Third Circuit determined that questioning while in police custody without providing Miranda warnings is not a Fifth Amendment violation if the individual is never charged with a crime and their responses are never used in a trial.

But on the other hand, in Vogt v. City of Hays (2017) the Tenth Circuit resolved this question in favor of a broader reading of the term “criminal case,” allowing the term to include certain pre-trial proceedings. The Second, Seventh, and Ninth Circuits take a similar view of the right against self-incrimination.

The facts of Vogt are unusual. In Vogt, a police officer for the City of Hays admitted during an interview with a neighboring police department that he had illegally retained a knife obtained during his employment as a police officer. The neighboring police department agreed to hire Vogt on the condition that he report the illegal retention of the knife to the Hays police department. Upon Vogt’s admission, Hays initiated a criminal investigation against him. The charges were dropped, but Vogt sued, claiming that the state violated his Fifth Amendment right against self-incrimination by inducing him to confess.

The Tenth Circuit in Vogt concluded—after examining the text of the Fifth Amendment and the Founders’ intent—that the right against self-incrimination includes pre-trial proceedings. The court noted that the Fifth Amendment makes no mention of “trial” or “criminal prosecution,” instead using the term “criminal case.” The court pointed to Counselman v. Hitchcock (1892) wherein the government argued that a witness could not invoke the Fifth Amendment in a grand jury proceeding because it was not a “criminal case.” The Supreme Court rejected the government’s argument there, holding that the “criminal case” of the Fifth Amendment is a broader term than the Sixth Amendment’s “criminal prosecution.”

Additionally, to determine the meaning of “criminal case,” the Tenth Circuit consulted the most prominent dictionary of the Framers’ era: purportedly Noah Webster’s An American Dictionary of the English Language. In this dictionary, “case” was defined as “a cause or suit in court.” This definition, where “suit” is understood to be nearly synonymous with “cause,” indicates that the Framers understood the criminal case to encompass more than merely the trial. From these facts, Tenth Circuit concluded that the right against self-incrimination is more than just a trial right.

LOOKING FORWARD

The City of Hays appealed the Tenth Circuit’s decision in Vogt, and the Supreme Court granted certiorari on September 28, 2017. The case was argued before the Court on February 20, 2018; however, whether this split will be resolved by the Vogt appeal is yet to be seen. Justices Samuel Alito and Sonia Sotomayor both noted the case was “odd,” and Justice Breyer even questioned whether the strange and distinguishing facts of Vogt made it an appropriate one for the Court to take. The Supreme Court has the option to dismiss the case as improvidently granted, but it is likely that the Court will publish an opinion resolving this constitutional issue soon.

On a constitutional question of this magnitude, let’s hope the Supreme Court doesn’t choose to plead the Fifth.