Written by: Amanda L. Wineman
Junior Associate Editor, The American Journal of Trial Advocacy
It is well established that a defendant cannot be forced to take the witness stand and testify against himself. The Fifth Amendment states, “No person shall be compelled in any criminal case to be a witness against himself.” There are three policy reasons for this rule: “the belief that government should not force a person to choose among self-accusation, perjury, and contempt; . . . desire to curb excesses of prosecutorial zeal; and . . . inherent distrust of self-incriminating statements.” The Fifth Amendment is effective in preventing these dangers to an extent. That extent has left the federal circuits split. On January 4, 2017 the Tenth Circuit joined three others in determining that the phrase “criminal case” as it is used in the amendment includes hearings and pretrial courtroom appearances by defendants in Vogt v. City of Hays.
Mr. Vogt was an officer at the Hays police department, but applied to become an officer with the City of Haysville. In applying for that position, he disclosed that he had, in his possession, a knife he obtained while working as a Hays police officer. Haysville offered Vogt the job on the condition that he return the knife to the Hays police department. Vogt complied, and the police chief ordered Mr. Vogt to issue a written report regarding the knife possession. A criminal investigation was initiated by the Kansas Bureau of Investigation, and Vogt’s statements made to the police chief were supplied to the Bureau. He was charged with two felony counts, but the charges were dismissed following a probable cause hearing. Vogt brought suit against the City of Hays “alleging use of his statements (1) to start an investigation leading to the discovery of additional evidence concerning the knife, (2) to initiate a criminal investigation, (3) to bring criminal charges, and (4) to support the prosecution during the probable cause hearing.” He argued that these uses of his compelled statements violated his Fifth Amendment right against self-incrimination.
The Fifth Amendment “prohibits compulsion of law enforcement officers to make self-incriminating statements in the course of employment.” Therefore, Vogt’s statements were constitutionally protected from use in a criminal case. The relevant question, however, was when a “criminal case” against Mr. Vogt began. Looking to the United States Supreme Court, the Tenth Circuit received mixed signals. Only dicta could be found discussing this particular issue, and the dicta was not consistent. In United States v. Verdugo-Urquidez, the Court stated as dicta that the right against self-incrimination only applied to trial. However, nine years later, dicta in another Supreme Court case suggested that the right extended to sentencing hearings. Ultimately, dicta in Chavez v. Martinez guided the Tenth Circuit to its decision: a criminal case includes pretrial hearings, specifically probable cause hearings.
After Chavez, a circuit split developed regarding the real meaning of “criminal case” as it is used in the Fifth Amendment. In deciding Vogt, the Tenth Circuit joined the Second, Seventh, and Ninth Circuits. The Second Circuit interpreted Chavez to mean that a bail hearing was included within the scope of the term “criminal case.” Suppression hearings, arraignments, and probable cause hearings are also considered part of a criminal case in the Seventh Circuit. Interpreting the term most liberally, the Ninth Circuit found that a violation occurs when a “coerced statement . . . has been relied upon to file formal charges against the declarant, to determine judicially that the prosecution may proceed, and to determine pretrial custody status.” Vogt gives no indication that the Tenth Circuit will interpret the Fifth Amendment to apply as broadly as the Ninth Circuit, but it seems aligned with both the Second and Seventh Circuits.
The Third, Fourth, and Fifth circuits disagree. They agree with the dicta from Verdugo-Urquidez that suggested the right was strictly limited to trial. Holding 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,” the Third Circuit required the use be at the actual trial of the plaintiff. The Fourth Circuit, ruled that Chavez was to be interpreted to mean a violation of the right did not occur until the testimony was admitted in court. Burrell’s Fifth Amendment claim failed in the Fourth Circuit because “he [did] not allege any trial action that violated his Fifth Amendment rights; thus, ipso facto, his claim fails on the [Chavez] plurality’s reasoning.” The Fifth Circuit’s rule similarly held, “[t]he Fifth Amendment privilege against self-incrimination is a fundamental trial right which can be violated only at trial, even though pre-trial conduct by law enforcement officials may ultimately impair that right.” Although not binding precedent, the Sixth Circuit held in Smith v. Patterson that the right is limited to trial.
The Tenth Circuit did not just blindly choose a side, it considered the Fifth Amendment’s text and the historical understanding of self-incrimination. The Sixth Amendment uses the phrase “criminal prosecutions,” and both the Sixth and Seventh Amendments use the term “trial.” Both of those amendments are specifically applicable to trial and have language making that apparent. By including the phrase “criminal case” the Supreme Court held that it should be interpreted more broadly. To determine what the framers intended, the Tenth Circuit looked to the dictionary definition they would have utilized. It found that “Webster’s 1828 dictionary defines ‘case’ as ‘[a] cause or suit in court,’ stating that the term ‘is nearly synonymous with cause.’” It defines “cause” as “[a] suit or action in court.” These definitions support the idea that the framers intended the right against self-incrimination to extend to pretrial matters. Simply put, if the framers wanted to limit the right to trial, they would have said so.
The First, Eighth, Eleventh, and D.C. Circuits have yet to weigh in on this issue. Further, with this ruling by the Tenth Circuit, this issue could likely find its way to the Supreme Court in the near future. Considering historical context and the Court’s dicta leaning more toward a broad interpretation of the right, the Tenth Circuit may have predicted the Court’s future ruling. This issue would appear to puzzle both those who view the Constitution as a living document and originalists as it seems less an argument about original intent and more about which Supreme Court’s dicta is more correct. Even political leanings may not be helpful as Chief Justice Rehnquist delivered the opinion in Verdugo-Urquidez and Justice Thomas delivered the opinion in Chavez. It is difficult to try and predict how this issue will be decided, if it will be decided, for several reasons. As of right now though, if you plead the Fifth, depending on where you are both geographically and in the course of your case, it may not matter.
 U.S. Const. amend. V.
 U.S. Const. amend. V.
 Moses v. Allard, 779 F. Supp. 857, 875 (E.D. Mich. 1991).
 844 F.3d 1235, 1246 (10th Cir. 2017).
 Vogt, 844 F.3d at 1238.
 Vogt, 844 F.3d at 1246.
 Id. at 1239 (citing Garrity v. New Jersey, 385 U.S. 493, 500 (1967)).
 Vogt, 844 F.3d at 1239.
 494 U.S. 259 (1990).
 Verdugo-Urquidez, 494 U.S. at 264 (1990).
 Mitchell v. United States, 526 U.S. 314, 320-21, 327 (1999) (stating “[t]o maintain that sentencing proceedings are not part of ‘any criminal case’ is contrary to the law and to common sense.”).
 538 U.S. 760 (1994).
 Vogt, 844 F.3d at 1239 (citing Chavez, 538 U.S. at 766 (1994)) (stating that a “’criminal case’ at the very least requires the initiation of legal proceedings.”).
 Vogt, 844 F.3d at 1240.
 Id. at 1240-42.
 Higazy v. Templeton, 505 F.3d 161, 171-73 (2d Cir. 2007).
 Best v. City of Portland, 554 F.3d 698, 702-03 (7th Cir. 2009).
 Stoot v. City of Everett, 582 F.3d 910, 925 (9th Cir. 2009).
 Renda v. King, 347 F.3d 550, 552 (3d Cir. 2003).
 Burrell v. Virginia, 395 F.3d 508, 513-14 (4th Cir. 2005).
 Id. at 514.
 Murray v. Earle, 405 F.3d 278, 285 (5th Cir. 2005) (emphasis omitted).
 430 Fed. App’x 438 (6th Cir. 2011).
 Smith, 430 Fed. Appx. at 441.
 Vogt, 844 F.3d at 1242.
 U.S. Const. amend. VI; U.S. Const. amend VII.
 Counselman v. Hitchcock, 142 U.S. 547, 562-63 (1892), overruled in part on other grounds by Kastigar v. United States, 406 U.S. 441 (1972) (holding that the Fifth Amendment’s text and underlying purpose meant that witnesses could plead the Fifth Amendment during a grand jury proceeding).
 Vogt, 844 F.3d at 1242.
 Id. at 1242-43 (citing Noah Webster, Case, An American Dictionary of the English Language (1st ed. 1828)).
 Id. at 1243 (quoting Thomas Y. Davies, Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right Against Self-Incrimination as a “Trial Right” in Chavez v. Martinez, 70 Tenn. L. Rev. 987, 1014 (2003)).
 Verdugo-Uquidez, 494 U.S. at 261; Chavez, 538 U.S. at 760.