Fifth Amendment Still Applies in Pretrial Proceedings

The right against self-incrimination extends to pretrial proceedings because the Fifth Amendment right is more than just a “trial right”

Vogt v. City of Hays, Kansas, 2017 BL 1063, 10th Cir. App., No. 15-3266, 1/4/17.

The Tenth Circuit held that the right against self-incrimination is not limited to trial, but also pretrial proceedings. The court found that the term “criminal case” under the Fifth Amendment includes probable cause hearings, concluding that the right is more than just a “trial right.”

In the case, a police officer was criminally investigated after admitting in an interview with another agency that he has withheld evidence in a trial. The charges were eventually dropped, but the officer sued the city and the police department claiming that the evidence used against him were coerced statements. In the lawsuit, the court sided with the city, holding that the Fifth Amendment only covers incriminating statements if they are used in trial. The Tenth Circuit, however, relying on dicta from Chavez v. Martinez, 538 U.S. 760, was willing to extend Fifth Amendment protections to the pretrial process. The court took into consideration pieces of constitutional history regarding the Fifth Amendment and held that it had a broad application in criminal cases.

http://www.bloomberglaw.com/public/document/Vogt_v_City_of_Hays_No_153266_2017_BL_1063_10th_Cir_Jan_04_2017_C.