By Lisa Soronen, executive director, State and Local Legal Center 

The Fifth Amendment says no person shall be “compelled in any criminal case to be a witness against himself.” The question the Supreme Court will decide in Hays, Kansas v. Vogt is whether the Fifth Amendment is violated when a public employee’s compelled, self-incriminating statements are used against him or her at a probable cause (preliminary) hearing rather than at a trial. 

In Garrity v. New Jersey (1967), the Supreme Court held that public employers violate the Fifth Amendment when they give employees a choice between “self-incrimination or job forfeiture,” which is what Matthew Vogt claimed happened to him.

Vogt worked as a police officer for the city of Hays. In a job interview with the city of Haysville, Kansas, Vogt disclosed he had kept a knife he obtained in the course of his work as a Hays police officer. Haysville offered Vogt the job but told him he had to tell Hays about the knife and return it. Vogt did so.

The Hays police chief told Vogt to write a report about the knife. Vogt wrote a vague, one-sentence statement. The Hays police chief then told Vogt to write a more detailed statement or he would be fired. Hays claims this more detailed statement was a compelled, self-incriminating statement. It was used to locate more evidence related to the seizure of the knife by Vogt.

Hays was charged with two felonies related to possessing the knife. Per state law, Hays received a probable cause hearing before trial. Charges were dismissed at the hearing.

The federal circuit courts of appeals are divided on whether the Fifth Amendment is violated if compelled, self-incriminating statements are used in a legal proceeding taking place before trial. The Tenth Circuit concluded the right against self-incrimination is more than a trial right by looking at the text of the Fifth Amendment, which doesn’t use the term “trial” or “criminal prosecution.” Also, according to the Tenth Circuit, the “Founders’ understanding of the term ‘case’ suggested the Fifth Amendment encompasses more than the trial itself.”  

State and local governments would benefit from a ruling that a criminal case under the Fifth Amendment only includes a trial because they can be sued for monetary damages for violating an employee’s right to be free from self-incrimination. Most cases don’t go to trial; however, many have pretrial bail hearings, suppression hearings, arraignments, and probable cause hearings.