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.

Suspect’s Conversation with Himself is Admissible in Court

Incriminating comments made in a police cruiser by a suspect speaking to himself, while being recorded, is not an interrogation and are admissible in court

United States v. Bailey, 2016 BL 253698, 8th Cir., No. 15-3591, 8/4/16.

    The Eighth Circuit ruled that comments made by a suspect while alone that were recorded on camera in a police cruiser are admissible in court. The police arrested the suspect after chasing him down when he fled a traffic stop. While alone in the car, he made an incriminating comment about the police finding his gun. In court, the defendant argued that these statements should be suppressed because they were made before he received his Miranda warnings and that he essentially was engaged in an interrogation. By being placed in the police cruiser with an active camera, the defendant contended that the police hoped or even expected him to make incriminating statements.

   The circuit court, however, disagreed with the defendant’s reasoning. Even with the police hoping that the defendant would incriminate himself on camera, the hope does not rise to an interrogation understood under Miranda jurisprudence. The court even noted that regular booking queries were stopped by the time the defendant was placed in the cruiser, further emphasizing that any formal interrogation or questioning had come to an end.

http://www.bloomberglaw.com/public/document/United_States_v_Bailey_No_153591_2016_BL_253698_8th_Cir_Aug_05_20.

Polygraph Admitted to Explain Police Questioning

When the defendant testified that his confession was coerced, it opened the door to cross-examinations about the his polygraph test.

 

United States v. Tenorio, 2015 BL 428927, 10th Cir., No. 15-2037, 12/29/15

    The court ruled that the government had a strong interest in giving the jury a more complete picture of what the defendant indicated was an aggressive interrogation, so the judge admitted the fact that the police had obtained the confession after a polygraph test had been administered.

    The defendant had previously testified that he was bullied into writing a confession and did not understand why the agents kept accusing him of lying and telling only "half the story." The judge limited the admission of the polygraph to only explain the officer's actions and directed the jurors to not speculate about the results of the polygraph.

http://www.bloomberglaw.com/public/desktop/document/United_States_v_Tenorio_No_152037_2015_BL_428927_10th_Cir_Dec_29_?1452526628