Reply Brief — City of Hays v. Vogt, 138 S. Ct. 55 (2017) (No. 16-1495)

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No. 16—1495

In the Supreme Court of the Anited States

City OF HAYS, KANSAS, PETITIONER

MATTHEW JACK DWIGHT VOGT

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

DAVID R. COOPER

LAUREN LAUSHMAN

FISHER, PATTERSON,

SAYLER & SMITH LLP

3550 SW Sth Street

Topeka, KS 66606

JOHN T. BIRD

City ATTORNEY

GLASSMAN, BIRD, BROWN

& POWELL LLP

200 West 13th, PO Box 727

Hays, KS 67601

TOBY J. HEYTENS

Counsel of Record

DANIEL R. ORTIZ

UNIVERSITY OF VIRGINIA

SCHOOL OF LAW

SUPREME COURT

LITIGATION CLINIC

580 Massie Road

Charlottesville, VA 22903

heytens@virginia.edu

(434) 924-3229

TABLE OF CONTENTS

. Vogt proposes no workable test for

determining which pretrial uses violate

the Self-Incrimination Clause...

The grand jury analogy underscores the

fundamental problems with the Tenth

ES ES I BE ne

. Holding that the Self-Incrimination Clause

can be violated by use during pretrial

proceedings would cause severe problems

. Vogt’s remaining arguments do not warrant

e . sc anesiaanin

. At minimum, the Court should hold that no

Garrity violation can occur before trial

TABLE OF AUTHORITIES

Cases:

Best v. City of Portland, 554 F.3d 698

oS ee eee rn 2

Chavez v. Martinez, 538 U.S. 760 (2003)...... 14, 20, 21

Coleman v. Alabama, 399 U.S. 1 (1970) ................... 11

Counselman v. Hitchcock, 142 U.S. 547 (1892).......... 9

Crawford v. Washington, 541 U.S. 36 (2004) ....... 3, 18

Cruz v. New York, 481 U.S. 186 (1987) 18

Digital Equip. Corp. v. Desktop Direct, Inc.,

eae FS |: a ers 7

Douglas v. California, 372 U.S. 353 (1963) .............. 11

Estelle v. Smith, 451 U.S. 454 (1981) 3,7

Garrity v. New Jersey, 385 U.S. 493 (1967)........ 14, 21

Gerstein v. Pugh, 420 U.S. 103 (1975) . 5

Halbert v. Michigan, 545 U.S. 605 (2005) ................ 11

Hiibbel v. Sixth Judicial Dist. Ct.,

4's B00 . 17

Jackson v. Denno, 378 U.S. 368 (1968) 12

Kastigar v. United States, 406 U.S. 441 (1972)........ 10

Michigan v. Bryant, 562 U.S. 344 (2011)............ 18, 20

Michigan v. Tucker, 417 U.S. 433 (1974) 20

Miranda v. Arizona, 384 U.S. 436 (1966) ................. 21

Pennsylvania v. Ritchie, 480 U.S. 39 (1987).............. 1

People v. Melotik, 561 N.W.2d 453

Gn 15

Press-Enterprise Co. v. Superior Court

of California, 478 U.S. 1 (1986) . . 12

Rayyis v. Superior Court, 35 Cal. Rptr. 3d 12

e 15

State v. Butler, 897 P. 2d 1007 (Kan. 1995) 4, 5, 8

State v. Moats, 457 N. W. 2d 299 (Wis. 1990) 16

State v. Zimmerman, 660 P. 2d 960 (Kan. 1983) 7

United States v. Hubbell, 530 U.S. 27 (2000) 17, 18

United States v. North, 910 F.2d 843

e ..... 15

United States v. Verdugo-Urquidez,

r 1. 10

Van Cauwenberghe v. Biard, 486 U.S. 517 (1988) 6

Waller v. Georgia, 467 U.S. 39 (1984) 12

Whorton v. Bockting, 549 U.S. 406 (2007)................ 18

Constitutional Provisions, Statutes and Rules:

e ̃ . 10

Kan. Stat. Ann. § 22-2902(1) (20 16) 5, 6

Kan. Stat. Ann. § 22-2902(3) (2016)........................ 4,5

Miscellaneous:

Albert W. Alschuler, A Peculiar Privilege In

Historical Perspective: The Right to Remain Silent,

94 Mich. L. Rev. 2625 (1996) 19

Eben Moglen, Taking the Fifth: Reconsidering the

Origins of the Privilege Against Self-Incrimination,

92 Mich. L. Rev. 1086 (1994) 19

John H. Langbein, The Historical Origin of the

Privilege Against Self-Incrimination At Common

Law, 92 Mich. L. Rev. 1047 (1994)..................00.... 19

U.S. Attorneys’ Manual: Principles of Federal

— 16

REPLY BRIEF FOR THE PETITIONER

Our position is straightforward. It is based in the

constitutional text. And it has remained consistent

throughout these proceedings. See Pet. Cert. Reply Br.

4 (Our argument does not turn on when a ‘criminal

case’ begins.”). A person cannot be a “witness against”

a criminal defendant until the stage where guilt and

punishment are determined—that is, at trial. That is

why this Court has described the Self-Incrimination

Clause and the Confrontation Clause as trial rights.

That is why defendants may not attack indictments by

claiming that the grand jury violated either Clause

and why the Confrontation Clause does not apply to

constitutionally mandated bail hearings. Pet. Br. 19-

22. And that is why there is no warrant for holding

that the Self-Incrimination Clause is violated—and

civil liability triggered—by use of allegedly compelled

statements during pretrial hearings that are not con-

stitutionally required and that are expressly designed

to substitute for the very grand jury proceedings where

the Fifth Amendment would pose no such bar.

Vogt's position, in contrast, is a moving target. Ac-

cording to Vogt, the Self-Incrimination Clause covers

uses “at any point in the criminal case.” Resp. Br. 10,

32. Except (maybe) not uses before a grand jury. Id. at

45. Or (probably) not during post-charge bail hearings.

Id. at 29, 48 n.12. And (perhaps) not during proceed-

ings held to determine the defendant’s competency to

stand trial. /d. at 29, 38 n.8. And definitely not during

! United States v. Verdugo-Urquidez, 494 U.S. 259, 264 (1990)

(‘The privilege against self-incrimination * * * is a fundamental

trial right of criminal defendants.”); Pennsylvania v Ritchie, 480

U.S. 39, 52 (1987) (plurality opinion) (“The opinions of this Court

show that the right to confrontation is a trial right).

suppression hearings designed “to filter out [the] com-

pelled statements themselves,” id. at 55 n.14, but

(maybe) during hearings held to determine the admis-

sibility of other evidence, see Best v. City of Portland,

554 F.3d 698, 702-703 (7th Cir. 2009) (holding that

plaintiff had stated claim based on use of compelled

statements during a suppression hearing).

These hedges, caveats, and qualifications are nec-

essary to prevent Vogt’s proposed resolution of this

case from too flagrantly violating this Court's prece-

dent or practical realities. But they illustrate a deeper

problem. To the extent Vogt proposes a clear rule that

he attempts to ground in the constitutional text, that

rule sweeps far beyond this case and creates conse-

quences he is unwilling to accept. And when Vogt tries

to limit the damage, his “rule” becomes increasingly ad

hoc, jerry-rigged, and removed from the constitutional

text and purpose.

A. Vogt proposes no workable test for deter-

mining which pretrial uses violate the Self-

Incrimination Clause

I. Vogt's primary argument involves a reading of

the constitutional text that cannot be squared with

this Court’s precedent or his own concessions about

which pretrial uses the Fifth Amendment does and

does not restrict. As Vogt points out, “(t]he Self-Incrim-

ination Clause prohibits the government from ‘com-

pel[ing]’ a person ‘to be a witness against himself” ‘in

any criminal case. Resp. Br. I. According to Vogt, a

“criminal case” exists once formal proceedings have

been initiated, id. at 16-18, and the sole function of the

words “witness against himself” is to “describe[] the

type of evidence covered by the Clause,” id. at 9, re-

gardless of “how or when the prosecution later uses

that statement,” id. at 20.

As the Federal Government has already explained

(U.S. Br. 18-19), that argument is inconsistent with

Esteile v. Smith, 451 U.S. 454 (1981), which involved

the constitutional restrictions on use of a defendant's

statements from a court-ordered competency examina-

tion. The statements were compelled and testimonial,

id. at 463-464, 468, and they were obtained and used

after a criminal case had been commenced, id. at 456-

457 (noting that the examination took place after the

defendant was indicted). Yet the Court was clear that

although use of the defendant’s statements in one type

of proceeding (a sentencing hearing to determine his

future dangerousness) had violated the Self-Incrimi-

nation Clause, id. at 466, “no Fifth Amendment issue

would have arisen” had the statements been used dur-

ing a hearing held to “ensur{e] that [the defendant] un-

derstood the charges against him and was capable of

assisting in his defense,” id. at 465; see id. at 468. Es-

telle thus demonstrates that, contrary to Vogt’s sug-

gestions, the exact same statements may or may not

trigger Self-Incrimination Clause concerns depending

on “how or when the prosecution later uses” them,

Resp. Br. 20. Cf. Crawford v. Washington, 541 U.S. 36,

60 n.9 (2004) (reaffirming that the Confrontation

Clause “does not bar the use of testimonial statements

for purposes other than establishing the truth of the

matter asserted”).

In fact, Vogt himself relies on a context- and pur-

pose-based approach when attempting to avoid the un-

tenable consequences of his own proposed rule. For ex-

ample, Vogt argues that there is no constitutional

problem with using a compelled statement for pur-

poses of determining the statement’s admissibility at

trial because “the point of a suppression hearing is to

determine whether the statement is compelled and el-

igible for Fifth Amendment protection.” Resp. Br. 55

n.14. Vogt makes the same move when discussing bail

hearings and competency proceedings. Id. at 48 n.12

(referring to the “purpose” served by bail hearings); id.

at 29 (discussing bail hearings and competency pro-

ceedings). We agree with Vogt that the context and

purpose for which an allegedly compelled statement is

being used matters for Fifth Amendment purposes.

But, at that point, even Vogt has abandoned the idea

that the “witness against himself” determination can

be based solely “on the nature of the evidence given

and the circumstances surrounding that person’s

statement at the time it is made.” Id. at 20.

2. Although the precise formulations vary, Vogt

suggests three more reasons why use of his allegedly

compelled statements during the probable cause hear-

ing violated the Fifth Amendment. The first rests on a

mischaracterization of the nature of that hearing. The

second and third have no basis in the constitutional

text and are endlessly manipulable.

a. At times, Vogt suggests that the Self-Incrimina-

tion Clause was violated because the purpose of the

probable cause hearing was to determine his guilt or

innocence. See, e.g., Resp. Br. 9 (“to demonstrate his

criminal guilt”); id. at 28 (“showing his guilt of the

charged crime”). That simply isn’t so. Under Kansas

law, “[a] preliminary hearing is not a trial of a defend-

ant’s guilt or innocence but rather an inquiry as to

whether the defendant should be held for trial.” State

v. Butler, 897 P.2d 1007, 1020 (Kan. 1995) (emphases

added); accord Kan. Stat. Ann. § 22-2902(3) (2016)

(framing issue as whether “there is probable cause to

believe that a felony has been committed by the de-

fendant”). The probable cause hearing thus “fulfills the

function of a grand jury proceeding,” Butler, 897 P.2d

at 1007, for which it is an express statutory substitute,

Kan. Stat. Ann. § 22-2902(1) (2016) (providing “a right

to a preliminary examination before a magistrate, un-

less such charge has been issued as a result of an in-

dictment by a grand jury).

b. Vogt’s next argument is framed in the negative.

Unlike certain other pretrial proceedings, Vogt sug-

gests, probable cause hearings implicate the Fifth

Amendment because they are not “so divorced from the

ultimate determination of guilt and punishment as to

warrant different treatment” than uses at trial. Resp.

Br. 29.

There are several fatal problems with this argu-

ment. Vogt never explains how a “so divorced” test can

be squared with his proposed interpretation of “crimi-

nal case” and “witness against.” What is more, Vogt's

own explanations only underscore the severe line-

drawing problems that would be created by such a

standard. For example, Vogt all but concedes that the

Fifth Amendment does not apply to use of the defend-

ant’s statements at constitutionally mandated bail

hearings. Resp. Br. 29, 48 n.12. But why not? The ulti-

mate legal question is the same as at Kansas’s proba-

ble cause hearing: whether there is “probable cause to

believe the suspect has committed a crime.” Gerstein

v. Pugh, 420 U.S. 103, 120 (1975) (bail hearings); see

Kan. Stat. Ann. § 22-2902(3) (2016) (probable cause

hearing). True, the hearings may be governed by some-

what different procedural rules, Resp. Br. 48 n.12, and

the consequences of an affirmative answer are some-

what different. But those differences have nothing to

do with the text of the Fifth Amendment nor with the

relationship between the question to be decided at the

hearing and “the ultimate determination of guilt and

punishment.” Id. at 29; cf. Van Cauwenberghe v.

Biard, 486 U.S. 517, 527 (1988) (holding that even an

order denying a motion to dismiss based on forum non

conveniens was not “completely separate from the mer-

its” for purposes of the collateral order doctrine).

c. At still other points, Vogt suggests that use of

his statements violated the Self-Incrimination Clause

because the probable cause hearing was “a necessary

step the State had to take to continue prosecuting

him,” Resp. Br. 29, and thus gave Vogt “a chance to

avoid trial in the first place,” id. at 12.

That claim likewise cannot withstand scrutiny. For

one thing, it depends on a very specific use of the word

“necessary.” Unlike the constitutionally mandated bail

hearings at which Vogt seems to acknowledge that the

Self-Incrimination Clause would have posed no bar to

the use of his statements, the Federal Constitution did

not require Kansas to conduct a preliminary hearing

at all. Pet. Br. 20-21. Even under Kansas law, moreo-

ver, there is no right to a probable cause hearing where

the defendant has been indicted by a grand jury. Kan.

Stat. Ann. § 22-2902(1) (2016). In other words, neither

the Federal Constitution nor Kansas law made the

hearing “necessary” in the sense of being “essential.”

A chance-to-avoid-trial test also proves far too

much and is endlessly manipulable. A defendant who

challenges his competency to stand trial has “a chance

to avoid trial in the first place,” Resp. Br. 12, but this

Court has said that use of compelled statements dur-

ing competency hearings does not violate the Self. In-

crimination Clause, Estelle, 451 U.S. at 465, 468. De-

fendants file suppression motions because they hope

“to avoid trial in the first place,” Resp. Br. 12, but Vogt

disclaims any suggestion that the Clause is violated by

use of allegedly compelled statements at suppression

hearings, Resp. Br. 55 n.14. This Court has been care-

ful to police against facile use of chance-to-avoid-trial

reasoning in other contexts. See Digital Equip. Corp.

v. Desktop Direct, Inc., 511 U.S. 863, 873 (1994) (ob-

serving that “virtually every right that could be en-

forced appropriately by pretrial dismissal might

loosely be described as conferring a ‘right not to stand

trial’”) (citation omitted). Similar vigilance is war-

ranted here.

A chance-to-avoid-trial theory is particularly dubi-

ous here for two additional reasons, one involving

Vogt’s own inaction and the other involving Kansas

law. As we and the Federal Government have pointed

out, it appears that Vogt made no effort to prevent con-

sideration of his allegedly compelled statements dur-

ing the probable cause hearing, whether by filing a

prehearing motion or objecting at the hearing itself.

Pet. Br. 28; U.S. Br. 4 n.2. If the Fifth Amendment

problem was compromising his chance to avoid a trial,

it was at least partly of Vogt’s own making.

The final problem with a chance-to-avoid-trial ar-

gument can be illustrated by imagining a counterfac-

tual where the state trial court found probable cause

and allowed the criminal case to proceed. Vogt could

not have taken an immediate appeal, because in Kan-

sas, like the federal system, criminal defendants are

not permitted interlocutory appeals. State v. Zimmer-

man, 660 P.2d 960, 963 (Kan. 1983). So even if Vogt

had objected to the use of his statements during the

probable cause hearing or filed a motion to suppress

his statements after it—and even if such a claim had

merit—Vogt still could have been faced with the choice

“between trial and a plea” had the judge wrongly over-

ruled Vogt's objection, “even though the prosecution

should never have been entitled to go to trial in the

first place.” Resp. Br. 58.2

B. The grand jury analogy underscores the

fundamenta! problems with the Tenth Cir-

cuit’s ruling

Everyone agrees that “this case does not involve

grand jury proceedings.” Resp. Br. 45. And it is under-

standable why the Federal Government—w hich, un-

like the States, is constitutionally required to prose-

cute via grand jury—would resist the comparison to

minimize the risk of adverse impact on federal prose-

cutions. U.S. Br. 9 n.3. But the grand jury analogy is a

telling one, and Vogt’s inability to refute it underscores

the weaknesses of his position.

1. To briefly restate the point: A criminal defend-

ant may not attack an indictment by claiming that the

grand jury considered his own previously compelled

statements. The Federal Constitution permits States

to use—or not use—grand juries as they see fit, and

Kansas law specifically provides that the hearing that

2 Vogt could have challenged the conduct of his probable cause

hearing via an appeal from a judgment of conviction. Even there,

however, Kansas law provides that “where an accused has gone

to trial and been found guilty beyond a reasonable doubt, any er-

ror at the preliminary hearing stage —including consideration of

inadmissible evidence—‘is harmless unless it appears that the

error caused prejudice at trial.” Butler, 897 P.2d at 1021. Vogt

thus seeks to impose Section 1983 liability against the City based

on something that would not have supported relief even had he

gone to trial.

occurred in this case is a substitute for and an alterna-

tive to proceeding via grand jury. The Federal Consti-

tution also would permit Kansas to eliminate probable

cause hearings entirely and leave criminal defendants

with no opportunity to challenge the decision to prose-

cute. Pet. Br. 19-21.

2. Vogt disputes none of that. Instead, he suggests

that the difference is that there is no “‘criminal prose-

cution’ at the time the grand jury does its work,” that

“the grand jury’s unique role and history” explain why

“the Fifth Amendment's constraints” are “ease[d]” in

that context, and that there is no anomaly in saying

that the Constitution imposes fewer restrictions on

proceedings that are often constitutionally required

(grand juries) than on proceedings that are never con-

stitutionally required (probable cause hearings). Resp.

Br. 45-47. None of these arguments withstands scru-

tiny.

a. The presence or absence of an ongoing “criminal

prosecution” provides no basis for treating grand juries

and probable cause hearings differently for Self-In-

crimination Clause purposes. The reason is simple.

The words “criminal prosecution” appear only in the

Sixth Amendment, whereas both the Grand Jury

Clause and the Self-Incrimination Clause are housed

in the Fifth Amendment.

The Self-Incrimination Clause applies to “criminal

casels].“ Vogt's whole argument, of course, is premised

on the idea that probable cause hearings are part of a

criminal case. But, as Vogt acknowledges, this Court

has said that grand jury proceedings also “are part of

a ‘criminal case’ under the Fifth Amendment.” Resp.

Br. 25 (citing Counselman v. Hitchcock, 142 U.S. 547,

563 (1892)). Although Counselman was overruled on

other grounds by Kastigar v. United States, 406 U.S.

441 (1972), its conclusion about the scope of “criminal

case” has never been disavowed. Indeed, it is rein-

forced by the Fifth Amendment's clarification that

there is no right to a grand jury “in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger.” U.S. Const.

amend. V (emphasis added). By underscoring that

grand jury proceedings are part of the “criminal case,”

the constitutional text thus refutes any effort to distin-

guish between grand juries and probable cause hear-

ings on that basis.

b. Vogt’s assertion that “the grand jury's unique

role and history” explain why this Court has easeld]

the Fifth Amendment’s constraints in grand jury pro-

ceedings,” Resp. Br. 46, suffers from two problems.

First, it assumes the answer to the question being

asked by presupposing what the Self-Incrimination

Clause would have required had it not been “ease[d].”

Second, it amounts to nothing less than a suggestion

that grand juries have a non-textual entitlement to vi-

olate the Self-Incrimination Clause. In contrast, any

anomaly disappears once it is recognized that “[t]he

privilege against self-incrimination * * * is a funda-

mental trial right” that can be violated “only at trial.”

Verdugo-Urquidez, 494 U.S. at 264.

c. Vogt is right that the Federal Constitution

sometimes imposes restrictions on procedures that

States are not required to create in the first place.

Resp. Br. 46-47. But when the Constitution does so, it

is for some reason. Other than simply repeating his as-

sertions about what the Fifth Amendment requires of

its own force, Vogt identifies no such reason here.

In fact, Vogt’s own example undermines his argu-

ment. As Vogt notes, Resp. Br. 46-47, “[t]he Federal

Constitution imposes on the States no obligation to

provide appellate review of criminal convictions.” Hal-

bert v. Michigan, 545 U.S. 605, 610 (2005). But if

States provide for such review, the Constitution re-

quires them to “appoint counsel for an indigent defend-

ant's first-tier appeal as of right.” Id. at 611. The

Court’s decisions also explain why this is so: because

of “both equal protection and due process concerns.” /d.

at 610 (internal citation omitted).

Here, in contrast, equality and fairness concerns

cut against Vogt. In the appointment-of-counsel con-

text, the salient distinction was between rich and poor

defendants, and the Court’s decisions acted to address

an existing disparity. See Douglas v. California, 372

U.S. 353, 355 (1963) (“[T]here can be no equal justice

where the kind of an appeal a man enjoys depends on

the amount of money he has.”) (internal quotation

marks and citation omitted) But Vogt is asking this

Court to hold that the Constitution requires creating a

distinction between different categories of defendants

(those who can take issue with use of allegedly com-

pelled statements during pretrial proceedings and

those who cannot) and to do so based on a distinction

over which States have unfettered choice and the de-

fendants themselves often have no control (whether a

particular prosecution involves a grand jury or a prob-

able cause hearing).

The Court's decision in Coleman v. Alabama, 399 U.S. 1

(1970), Resp. Br. 47, reflects a different principle. The Sixth

Amendment has long been construed to require counsel at all

critical stages of the State's criminal process, including stages

that are not constitutionally required. Coleman, 399 U.S. at 7-9

(plurality opinion) (giving examples). The Court's holding was

C. Holding that the Self-Incrimination Clause

can be violated by use during pretrial pro-

ceedings would cause severe problems

The court below acknowledged that if the Fifth

Amendment applies to pretrial proceedings,” evidence

that would be inadmissible at trial “would be consid-

ered inadmissible in pretrial proceedings as well.” Pet.

App. 19a. Such a holding would create severe prob-

lems.

1. For one thing, the City is not the gatekeeper of

evidence on Fifth Amendment grounds. It is the court,

not the parties or the witnesses, that determines

whether evidence was obtained in a constitutional

manner and the uses to which it may be put in further

proceedings. Cf. Jackson v. Denno, 378 U.S. 368

(1968); note 5, infra (discussing Kastigar hearings).

What is more, Vogt seeks to hold the City liable based

on at least two decisions the City did not make: the

state prosecutors, not the City, decided to proceed via

probable cause hearing rather than via grand jury and

to use Vogt’s allegedly compelled statements at the

probable cause hearing. Pet. Br. 27-29; State & Local

Gov't Employers Amicus Br. 9, 12-14.

thus based on a conclusion that the preliminary hearing at issue

there was a “critical stage” for Sixth Amendment purposes. This

case involves a different question: what uses of allegedly com-

pelled statements make someone a “witness against himself” for

purposes of the Self-Incrimination Clause.

Press-Enterprise Co. v. Superior Court of California, 478 U.S.

1 (1986), and Waller v. Georgia, 467 U.S. 39 (1984), Resp. Br. 39

n.9, are even further afield, because those cases implicated im-

portant public interests involving access to judicial proceedings.

Waller, 467 U.S. at 46-47 (noting that the public-trial guarantee

“ensure[s] that judge and prosecutor carry out their duties re-

sponsibly’).

2. Vogt acknowledges that his position would re-

quire courts to resolve admissibility issues before con-

ducting at least some types of pretrial proceedings.

Resp. Br. 53-55. As the State amici explain, requiring

that such decisions be made before bail hearings or

during grand jury proceedings would be incompatible

with the nature of those proceedings. Kansas Amicus

Br. 5-11.

Even if the Court could identify some basis for lim-

iting expansion of the Self-Incrimination Clause's re-

strictions to probable cause hearings alone, but see

Section A, supra, such a holding would still cause sig-

nificant problems. The Federal Government and many

States currently forbid courts from adjudicating sup-

pression issues during probable cause hearings, U.S.

Br. 29; Kansas Amicus Br. 13 & n.5, so all of those

rules would have to be flipped to require courts to do

so. But the current rules are well-justified, because

“requir[ing] courts to make complex determinations

about the admissibility of a defendant’s statements be-

fore resolving other preliminary issues” “would change

the nature and purpose of pretrial proceedings,” U.S.

Br. 26, “either cause delays or would give the parties

insufficient time to investigate and prepare” for those

hearings, Kansas Amicus Br. 14 (quotation marks and

citation omitted), and “raise difficult questions about

what a defendant must do to preserve an argument

that his statements were compelled,” U.S. Br. 30.

3. Vogt's reassurances that there is no cause for

alarm are unpersuasive.

a. Much of Vogt’s argument rests on a bit of rhe-

torical sleight-of-hand, specifically blurring the dis-

tinction between what this Court must assume be-

cause of the procedural posture of this case and the ac-

tual situation confronting the City. The reason “[t]here

is no dispute before this Court that Officer Vogt's

statements were compelled by [the City] and impli-

cated him in criminal conduct,” Resp. Br. 1, is because

the Court is reviewing a decision dismissing Vogt's

complaint for failure te state a claim. The City, of

course, did not have Vogt’s complaint when it acted,

nor was it required to view the facts in the light most

favorable to him. Yet much of Vogt's argument is

premised on the idea that the City knew all along that

Vogt would later argue that his interactions with his

former superiors gave rise to obligations under Garrity

v. New Jersey, 385 U.S. 493 (1967), and that the City

should have avoided the whole problem by keeping the

information about Vogt’s possible criminal wrongdoing

from the KBI. Resp. Br. 48-52. But, as we and our

amici have explained, matters will rarely be so clear in

the real world, which is why courts hold suppression

hearings in the first place. Pet. Br. 26-27; U.S. Br. 27-

28; Kansas Amicus Br. 67.“

b. Vogt asserts that “application of the Fifth

Amendment at pretrial hearings is the law of the land

in at least four circuits * * *, and there has been no

sign that those proceedings have become unworkable

for prosecutors in those parts of the country.” Resp. Br.

Simply giving the information to the KI could not itself

have been a Fifth Amendment violation because, at that point,

there was no “criminal case.” See Chavez v. Martinez, 538 U.S.

760 (2003); Pet. Br. 18-19. This matter was nearly certain to be

referred to the KBI in any event, becauee Vogt does not contend

that the City compelled him to make his initial disclosures about

the knife. And Vogt cites no authority for the proposition that the

City was required to forgo even telling state officials that one of

its police officers had been implicated in serious wrongdoing.

53-54. It would be more accurate to say that courts and

litigants have yet to perceive the problem. The deci-

sions comprising the Vogt-favoring side of the split

were all civil cases decided within roughly the last dec-

ade, see Pet. 7-8, and we have been unable to locate

any cases where a criminal defendant relied on one of

those decisions to support a claim that the Federal

Constitution barred use of allegedly compelled state-

ments during pretrial proceedings or required over-

turning a conviction because such statements were im-

properly used during such proceedings. That will

doubtlessly change if Vogt prevails before this Court.“

4. Vogt contends (Resp. Br. 29-30) that our posi-

tion would permit the prosecution to require criminal

defendants to take the witness stand at probable cause

hearings and then use the resulting statements to sup-

port binding the defendant over for trial. Vogt identi-

fies no case where prosecutors attempted such a ma-

neuver.® (And, of course, Vogt’s own approach would

Vogt is incorrect that “courts have already determined that

the Fifth Amendment requires pretrial proceedings in cases

where testimony has been immunized.” Resp. Br. 56. Under cur-

rent law, “a trial court may hold a Kastigar hearing pre-trial,

post-trial, mid-trial (as evidence is offered), or it may employ

some combination of these methods.” United States v. North, 910

F.2d 843, 854 (D.C. Cir. 1990). Under Vogts approach, these

“time-consuming procedure[s],” Resp. Br. 56, often will need to

occur far earlier and before other proceedings designed to take

place immediately or soon after charges are filed.

® The decisions cited by NACDL (at 18), are not to the con-

trary. Rayyis v. Superior Court, 35 Cal. Rptr. 3d 12, 13-14 (Cal.

Ct. App. 2005), involved “the ‘corpus delicti rule, under which

“the fact that a crime has been committed * * * cannot be proved

based solely on extrajudicial statements of the defendant.” People

v. Melotik, 561 N.W.2d 453, 455, 457 (Mich. Ct. App. 1997), and

permit such conduct before a grand jury, yet he pro-

vides no reason for believing there have been problems

in that context either.)

The reason should be equally obvious: the strategy

would be self-defeating. The defendant would be able

to invoke the privilege against self-incrimination at

the probable cause hearing and refuse to speak unless

granted immunity. See Pet. Br. 12-15 (discussing the

distinction between when the privilege against self-in-

crimination may be invoked and when the Fifth

Amendment is actually violated). And any victory won

at the probable cause hearing by granting the defend-

ant immunity would almost certainly be a pyrrhic one,

because the resulting statements would be inadmissi-

ble at trial and it seems unlikely that the prosecutors

would be able to carry their burden of showing that

none of their trial evidence was derived from the de-

fendant’s immunized statements. See id. at 16-18 (dis-

cussing immunity doctrines).’

D. Vogt’s remaining arguments do not war-

rant a different result

1. Contrary to his repeated suggestions (Resp. Br.

20-24), the issue is not whether Vogt's statements

State v. Moats, 457 N.W.2d 299, 302 (Wis. 1990), involved out-of-

court statements obtained by police officers.

Vogt is suggestion that this Court should act to prevent pros-

ecutors from bringing cases where they know the “defendant's

compelled statement would not be admissible at trial” solely in

the “hope” of “extract{ing] a plea,” Resp. Br. 58, ignores ſt Ihe pre-

sumption of regularity” and good faith accorded to those charged

with enforcing the law. United States v. Armstrong, 517 U.S. 456,

464 (1996) (citation omitted); see U.S. Attorneys’ Manual: Princi-

ples of Federal Prosecution § 9 27. 220 (instructing prosecutors to

commence a case only if they “believe[] * * that the admissible

evidence will be sufficient to obtain and sustain a conviction’ ).

were sufficiently testimonial to make him a “witness.”

True, the Court has used that word to describe people

who participate in “any investigation,” id. at 21 (cita-

tion omitted), including those questioned by police of-

ficers, Crim. Proc. Scholars Amicus Br. 18-19. But the

Court has been equally clear that the Fifth Amend-

ment cannot be violated absent some sort of courtroom

use during a criminal proceeding. Pet. Br. 18-19. Ac-

cordingly, the key question is whether use of Vogt's

statements at the probable cause hearing was, by it-

self, enough to render him “a witness against himself.”

2. Vogt claims “that a defendant becomes a ‘wit-

ness against himself’ when he makes ‘incriminating

communications that are ‘testimonial’ in charac-

ter.“ Resp. Br. 19 (quoting United States v. Hubbell,

530 U.S. 27, 34 (2000)). That is not what Hubbell says.

The sentence from which Vogt quotes only in part

makes clear that the Court was speaking (a) about the

meaning of “witness” rather than “witness against

himself,” and (b) in terms of minimum requirements

rather than comprehensive definitions. Hubbell, 530

U.S. at 34 (The word ‘witness’ in the constitutional

text limits the relevant category of compelled incrimi-

nating communications to those that are ‘testimonial’

in character.“). And Vogt’s claim that the sole function

of the words “against himself” is to “require[] that the

testimonial statements be incriminating” in some gen-

eral sense is warranted by neither decision offered to

support it. Resp. Br. 19-20 (citing Hubbell, 530 U.S. at

34, and Hiibbel v. Sixth Judicial Dist. Ct., 542 U.S.

177, 189 (2004)).*

Although he claims that our discussion of Hubbell “makes

no sense,” Resp. Br. 42, Vogt cannot explain why the Court em-

phasized the government's inability to show “that the evidence it

This Court’s decisions construing the similarly

worded Confrontation Clause reinforce that one can-

not “be a witness against [one]self” until the stage

where guilt and punishment are determined. In Craw-

ford v. Washington, 541 U.S. 36 (2004), for example,

the Court noted that “[o]ne could plausibly read ‘wit-

nesses against’ a defendant to mean those who actu-

ally testify at trial, those whose statements are offered

at trial, or something in-between,” id. at 42-43 (cita-

tion omitted), but gave no hint that one could be a “wit-

ness against” the defendant absent any use at trial. In

Cruz v. New York, 481 U.S. 186 (1987), the Court

stated that ſolrdinarily, a witness is considered to be

a witness ‘against’ a defendant for purposes of the Con-

frontation Clause only if his testimony is part of the

body of evidence that the jury may consider in assessing

his guilt,” id. at 190 (emphases added)—that is, the ev-

idence at trial. Accord Michigan v. Bryant, 562 U.S.

344, 358 (2011) (describing “the basic objective of the

Confrontation Clause” as “preventling] the accused

from being deprived of the opportunity to cross-exam-

ine the declarant about statements taken for use at

trial”); Whorton v. Bockting, 549 U.S. 406, 413 (2007)

(reiterating that the Confrontation Clause applies to

“[tlestimonial statements of witnesses absent from

trial”) (citation omitted).

3. Vogt's argument from history also fails. We

agree that “the Framers could not possibly have in-

tended the phrase [‘witness against himself'] to cover

* * * proposed to use at trial was derived from legitimate [inde-

pendent] sources.” Pet. Br. 18 n.11 (quoting Hubbell, 530 U.S. at

45). On Vogt’s view, that observation was irrelevant at best, and

actively misleading at worst.

statements made by the defendant only at the trial it-

self.” Resp. Br. 22. Like the Confrontation Clause, the

Self-Incrimination Clause also covers at-trial use of a

defendant's compelled pretrial statements. Pet. Br. 1,

9, 12-14. Where we disagree is whether a defendant

has been made to be a “witness against himself” when

he has neither been forced to take the witness stand at

his own trial nor had his own previously compelled

statements introduced against him at trial.

As the Federal Government explains, the purpose

of the pretrial examinations Vogt discusses was to gen-

erate evidence that could later be used to prove the de-

fendant’s guilt at trial. U.S. Br. 19-24.9 Vogt provides

no evidence that the Fifth Amendment “was intended

to guard against the use of a defendant's compelled

statements for the limited purpose of determining

whether the case should go forward upon a showing of

probable cause after charges were filed, with no subse-

quent use of the statements at the guilt or penalty

stage.” U.S. Br. 23.

Vogts sources agree. Albert W. Alschuler, A Peculiar Privi-

lege In Historical Perspective: The Right to Remain Silent, 94

Mich. L. Rev. 2625, 2654 (1996) (‘Until the mid-eighteenth cen-

tury, the record of the defendant's pretrial examination was rou-

tinely read at her trial.”); John H. Langbein, The Historical Ori-

gins of the Privilege Against Self-Incrimination At Common Law,

92 Mich. L. Rev. 1047, 1061 (1994) (Having impaled himself at

pretrial, the criminal defendant would find that any supposed

privilege against self-incrimination available at trial was worth

little. If he declined to testify at trial, or attempted to recant upon

his pretrial statement, the pretrial statement would be invoked

against him at trial.”); Eben Moglen, Taking the Fifth: Reconsid-

ering the Origins of the Privilege Against Self-Incrimination, 92

Mich. L. Rev. 1086, 1098 (1994) (“All sources agreed” that the de-

fendant’s pretrial “confession, if any, was to be admissible against

him at trial.).

Vogt's contrary claims miss the mark because they

neglect the critical distinction between when the priv-

ilege against self-incrimination may be invoked and

when the Fifth Amendment is actually violated. See

Pet. Br. 12-15 (discussing this distinction). It is true

that, at common law, a criminal defendant was barred

from testifying at his own trial. Resp. Br. 22, 31. But

that does not mean there was no way a defendant

could be “a witness against himself” at such trials. Cf.

Bryant, 562 U.S. at 357-358 (explaining that the

basic purpose of the Confrontation Clause was to

targe|t] the sort of abuses exemplified at the notorious

treason trial of Sir Walter Raleigh,” where an accuser’s

out-of-court statements were admitted against Ra-

leigh at trial) (internal quotation marks & citation

omitted). And that risk, in turn, explains why “defend-

ants had throughout the criminal process a right to re-

fuse to provide self-incriminating testimony under

oath.” Resp. Br. 31. Not because compulsion, standing

alone, would render the defendant “a witness against

himself.” But rather because it was clear, then as now,

“that an inability to protect the right at one stage of a

proceeding may make its invocation useless at a later

stage.” Michigan v. Tucker, 417 U.S. 433, 440-441

(1974).

E. At minimum, the Court should hold that no

Garrity violation can occur before trial

This case is a far cry from Chavez v. Martinez, 538

U.S. 760 (2003). There, the plaintiff was subject to in-

tense police questioning while “screaming in pain” af-

ter being “shot in the face,” and the officer made no

effort to dispel the perception that medical treatment

was being withheld until [the plaintiff] answered the

questions put to him.” /d. at 798 (Kennedy, J., concur-

ring in part and dissenting in part).

Vogt cannot claim that he experienced “severe com-

pulsion,” Chavez, 538 U.S. at 799 (Ginsburg, J., con-

curring in part and dissenting in part), much less “tor-

ture or its close equivalents,” id. at 789 (Kennedy, J.

concurring in part and dissenting in part). Even cred-

iting all allegations of the complaint, this case involves

a police officer who notified his employer about his own

misconduct and was then required, as a condition of

his job (from which he had already decided to quit) to

provide additional information about those same mat-

ters. Pet. App. 49a.

As we explained in our opening brief, “[e]ven if

some types of Fifth Amendment violations could occur

before trial, the Court should reject any such notion for

* * * claims” like Vogt’s. Pet. Br. 25 (citing Garrity v.

New Jersey, 385 U.S. 493 (1967)). Such claims bear no

resemblance to the types of abuses that motivated the

Self-Incrimination Clause. What is more, the Consti-

tution specifically permits a public employer to inform

an employee that he will be fired unless he cooperates

with an official investigation so long as it follows cer-

tain rules, and the appropriate time for determining

whether those rules have been followed is at trial. Pet.

Br. 25. Thus, as with Miranda v. Arizona, 384 U.S. 436

(1966), the Court should, at minimum, hold that no

Garrity violation can occur short of trial. Cf. Chavez,

538 U.S. at 790 (Kennedy, J., concurring in part and

dissenting in part) (stating that “[t]he identification of

a Miranda violation and its consequences * * * ought

to be determined at trial”).

* * *

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.