Tuesday, January 10, 2017

The Fifth Amendment is not just a trial right

The Fifth Amendment guarantees that no person "shall be compelled in any criminal case to be a witness against himself."
Does it violate the Fifth Amendment when the government uses compelled statements in criminal proceedings other than trial? Yes it does, says the Tenth Circuit, in Vogt v. City of Hays, a case examining whether the use of a compelled statement in a Kansas preliminary hearing was actionable in a Section 1983 case. Here are the relevant holdings:
 "The Fifth Amendment is violated when criminal defendants are compelled to incriminate themselves and the incriminating statement is used in a probable cause hearing."
"[W]e join the Second, Seventh, and Ninth Circuits, concluding that the right against self-incrimination is more than a trial right." 
"We agree . . . that the term 'criminal case' is broader than the term 'criminal prosecution.' Indeed, on its face, the term 'criminal case' appears to encompass all of the proceedings involved in a 'criminal prosecution.'" 
What does this mean in practice? 

It suggests that the government cannot use a compelled (coerced, involuntary, or un-Mirandized) statement in a grand-jury proceeding, at a detention hearing, or in any other proceeding in a criminal case.

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