In Vogt v. City of Hays, the United States Court of Appeals for the Tenth Circuit ruled that the Fifth Amendment right against self-incrimination is more than a trial right and applies to the use of compelled statements in probable cause hearings as well as in criminal trials. While the Self-Incrimination Clause states that the right applies “in a criminal case,” there is a circuit split regarding the definition of a “criminal case.” The Tenth Circuit joined the Second, Seventh, and Ninth Circuits in finding that the right against self-incrimination applies to more than a trial, relying on the common meaning of the term “criminal case” in the Fifth Amendment text and the Framers’ understanding of the right. This competition winning Note explores the opinion of the court, discusses additional authority to support the court’s finding, and emphasizes the impact of the Vogt decision in protecting a criminal defendant’s constitutional privilege against self-incrimination. As the Supreme Court has granted certiorari to hear the Vogt case in 2018, this discussion provides a timely analysis of the Fifth Amendment before what could be an end to the circuit split over the meaning of a “criminal case.”
Daniel J. De Cecco
Taking the Fifth: How the Tenth Circuit Determined the Right Against Self-Incrimination is "More Than A Trial Right" in Vogt v. City Of Hays,
2017 Pepp. L. Rev.
Available at: https://digitalcommons.pepperdine.edu/plr/vol2017/iss1/5