Justices Unsure on Scope of Self-Incrimination Protection(1)

By Kimberly Strawbridge Robinson

The justices of the U.S. Supreme Court seemed uncertain how broadly to apply the Fifth Amendment protection against self incrimination during oral argument Feb. 20.

The question for the justices is whether that protection applies in a probable cause hearing, at which the court decides whether there is enough evidence to go forward with a criminal trial.

Because 95 percent of cases are pleaded out after the probable cause hearing, refusing to apply the protection at that stage threatens to shrink the right to almost a vanishing point, Justice Ruth Bader Ginsburg said.

But interpreting the right more broadly could open up the door to attacking grand jury proceedings, which generally can’t be challenged, Justice Stephen G. Breyer said.

Justice Neil M. Gorsuch is recused from the case. That, plus the case’s procedural posture—the felony charges against the defendant Kansas police officer here were ultimately dismissed at the probable cause hearing—could persuade the court to dismiss the case as improvidently granted and send it back to the lower court for fuller consideration.

‘Against’ Oneself

The Fifth Amendment prohibits any person from being “compelled in any criminal case to be a witness against himself.”

Statements are only used “against” someone when used to determine guilt or innocence, Toby Heytens, of the University of Virginia School of Law, Charlottesville, Va., said. Heytens represents the City of Hays, Kansas, which is being sued by a former police officer under 42 U.S.C. §1983 for causing compelled statements to be used against him in a probable cause hearing.

But a probable cause hearing doesn’t decide guilt or innocence, only whether the case should continue, Heytens said. So the self-incrimination right doesn’t apply, he said.

Gum Up the Works

The most natural way to read “against” in the Fifth Amendment is to say that it can’t be used in a way that is adverse to the person making the statement, Justice Elena Kagan said. Not your way, she told Heytens.

But reading the right the way Kagan suggests would “gum up the works,” Elizabeth Prelogar, of the Justice Department, Washington, told the justices.

The government argued as amicus in support of a narrow application of the right limited to use in criminal trials. Judges would have to push up evidentiary hearings in order to determine if statements used at probable cause hearings were compelled in violation of the Fifth Amendment, Prelogar said.

Justice Sonia Sotomayor noted that there is a circuit split on the question, so some circuits already prohibit compelled testimony in probable cause hearings. There’s no evidence of “gummed up works” in those circuits, Sotomayor said.

Revolutionary Change

It’s hard to see why a determination that the right against self-incrimination applies to probable cause hearings wouldn’t also apply to grand juries, which determine whether criminal charges should even be brought, Breyer said.

Could there be evidentiary motions for grand jury proceedings, Justice Samuel A. Alito Jr. wondered aloud. If so, that’d be revolutionary, he said.

There are already plenty of differences between grand jury proceedings and probable cause hearings, the officer’s attorney, Kelsi Corkran, of Orrick, Herrington & Sutcliffe LLP, Washington, said. For example, the Sixth Amendment right to counsel applies in probable cause hearings, but not in grand jury proceedings, she said.


The idea that the case could have implications for grand jury proceedings seemed to catch at least Breyer off guard.

He then suggested some possibilities for getting rid of the case without having to make that potentially game-changing decision.

Where in the record did you even object to the use of the compelled statements at the probable cause hearing, Breyer wanted to know, suggesting that the officer had waived any objection.

The record isn’t yet developed because the case had been decided below on the pleadings, Corkran said.

That didn’t stop the justices from noting another potential roadblock to the suit.

How can you sue the city for what happened during the probable cause hearing, Alito asked.

What kind of damages can you prove given that the officer prevailed at the probable cause hearing, Sotomayor wondered.

The questions suggest that the justices are looking for ways to ditch the case and deal with the larger issue at a later date.

There are lots of questions that still need to be decided by the lower court in this case, Sotomayor said.

The case is City of Hays v. Vogt, U.S., No. 16-1495 , argued 2/20/18 .

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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