Matthew Vogt was formally charged in Kansas state court with two felony counts related to acquiring a weapon while on the job as a police officer. During his probable-cause hearing, the government introduced allegedly coerced and incriminating statements as evidence against him. Vogt filed a civil-rights claim in district court, arguing that the use of these statements violated the Fifth Amendment, which provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” The district court dismissed Vogt’s claims, but the Tenth Circuit Court of Appeals reversed, reasoning that “the right against self-incrimination is more than a trial right.” The City of Hays asked the Supreme Court to review the court’s decision, and it agreed to do so.

CAC filed a friend-of-the-court brief on behalf criminal procedure scholars in which we urged the court to affirm the Tenth Circuit’s decision. In our brief, we explained that, as Founding-era usage reflects, the broad phrase “any criminal case” plainly includes pre-trial probable cause hearings, and this definition comports with other uses of the term “case” in the Constitution. The use of this broad language is further consistent with the Self-Incrimination Clause’s placement in the Fifth Amendment, which includes other rights related to the initiation of criminal proceedings, rather than in the Sixth Amendment, which focuses on the legal protections that apply once a criminal prosecution has begun. We also argued that narrowly construing the scope of the Clause would not only be at odds with the Fifth Amendment’s plain text, it would also be at odds with the historical foundations of the self-incrimination privilege.  In sum, when the government introduces coerced, incriminating statements as evidence against a person at a pre-trial probable cause hearing, the government violates that individual’s Fifth Amendment self-incrimination right no less than if it introduced such statements at trial.

The Supreme Court dismissed the City of Hays’ petition as improvidently granted, leaving the decision of the Tenth Circuit in place.