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

No. 16-1495

eel

IN THE

Supreme Court of the United States

CITY OF HAYS, KANSAS,

Petitioner,

>

MATTHEW JACK DWIGHT VOGT,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

BRIEF OF CRIMINAL PROCED URE

SCHOLARS AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

ASHWIN P. PHATAK**

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Ste 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amici Curiae

* Counsel of Record

December 20, 2017 **Not admitted in

D.C.; supervised by

principals of the firm

eed

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ................::::ccecceeeeeees ii

INTEREST OF AMICI CURIAE....................0000006

SUMMARY OF ARGUMENT ..............:::eeeeeeeeeeees

ARRGUEIEIND .....ccccsccnccesccsseccccecccccccsssssccscsscsssesesseees 4

I. THE TEXT, STRUCTURE, AND DRAFT-

ING HISTORY OF THE CONSTITUTION

DEMONSTRATE THAT THE SELF-IN-

CRIMINATION CLAUSE IS VIOLATED

WHEN COERCED, INCRIMINATING

STATEMENTS ARE INTRODUCED AT

PRE-TRIAL PROBABLE CAUSE HEAR-

ll. THE HISTORICAL PRACTICE AT THE

TIME OF THE FOUNDING CONFIRMS

THAT THE SELF-INCRIMINATION

CLAUSE IS VIOLATED WHEN CO-

ERCED, INCRIMINATING ~ STATE-

MENTS ARE INTRODUCED AT PRE-

TRIAL PROBABLE CAUSE HEARINGS... 21

CONCLUSION .......:cccscsssssscsorscsserscreessnsnsccesseonoees 26

(i)

il

TABLE OF AUTHORITIES

Page(s)

Cases

Abney v. United States,

431 U.S. G51 (1977) .......0ccccecceeeeeeeeeereeceeneee 7

Barber v. Page,

390 U.S. 719 (1968)..........cccceccccceeeeeeeeeeees 20

Blyew v. United States,

80 U.S. (13 Wall.) 581 (1871)... eeee 5

Brown v. Walker,

161 U.S. 591 (1896)...........cccceeeseereereees 20

Browning-Ferris Indus. of Vermont, Inc. v.

Kelco Disposal, Inc.,

AQZ U.S. 257 (1989)...........0ccecereesreeeeeeeeeeees 14

Chavez v. Martinez,

538 U.S. 760 (2003)............:ccccceeeeereerereeees 2, 15

Coleman v. Alabama,

BOO U.S. 1 (1970).........ccececeeserreeeneeseenenenees 10

Counselman v. Hitchcock,

142 U.S. 547 (1892)..........cccccccccreseeeeeneerenes 8,9

Crawford v. Washington,

541 U.S. 36 (2004)................. 16, 18, 19, 22, 23

Davis v. Washington,

547 U.S. 813 (2006)............:cececeeeeeeeeeeerreeee 19

Doe v. United States,

ABT U.S. 201 (1988)..........:c:cecceeeerereereeseeees 3, 22

Ferguson v. Georgia,

365 U.S. 570 (1961)............0cceeeeeeeeesneeersees 23

ill

TABLE OF AUTHORITIES - cont'd

Page(s)

Gerstein v. Pugh,

420 U.S. 108 (1975) .......ccccccceerssserenseseseseres 10

Hamilton v. Alabama,

BGB U.S. 52 (1961).......ccccccscsssrreeseeesesereeeees 10

Hiibel v. Sixth Judicial Dist. Court,

542 U.S. 177 (2004).........ccccccereeeeeeeneneeeenees 20

Lafler v. Cooper,

BGG U.S. 156 (2012)............ccessseccererseseesees 24

Melendez-Diaz v. Massachusetts,

557 U.S. 305 (2009)...........cccccceceeseeeeeeeeeeees 18-19

Michigan v. Bryant,

5GZ U.S. 344 (2O11)........ccccsereeerereeeeeneeeeees 18

Michigan v. Tucker,

A417 U.S. 433 (1974) .......cccccccsseseeeeeeeeeeeeeeens 21-22

Mitchell v. United States,

526 U.S. 314 (1999).........ccccceccceeereeeeeneeenees 4,5

Murphy v. Waterfront Comm'n,

378 U.S. B2 (19G4).........ccccccceceerreeeeeeeeeeeees 23

Ohio v. Clark,

135 S. Ct. 2173 (2OLG).......cererereceeeererees 18

Peterson v. California,

604 F.3d 1166 (9th Cir. 2010).............0666 10

Powell v. Alabama,

QB7 U.S. 45 (1932)........ccccccsereesreereerereeesees 10

Price v. Georgia,

398 U.S. B2B (1970).........ccceceeeeeeeeeneeeeeeeeees 7

iv

TABLE OF AUTHORITIES - cont'd

Page(s)

Ratzlaf v. United States,

a 5

Rothgery v. Gillespie Cty.,

I a 3)

Ullmann v. United States,

360 U.S. 422 (1966)....................... 3, 21, 22, 25

United States v. Balsys,

SI EE 0 sccsceuserenennsononcenses 8-9

United States v. Burr,

25 F. Cas. 38 (C.C. D. Va. 1807) (No.

a eensitesecunees 20

United States v. Gouveia,

ee 9

United States v. Hubbell,

a csssomesenes 19-20

United States v. MacDonald,

CS 3)

United States v. Mandujano,

Tee 10

United States v. Marion,

a 8,9

United States v. Williams,

I a casctinmrosesonsees 9-10

Whitmore v. Arkansas,

Stn i ccncctesenieboneccterseneseseeseoes 6

v

TABLE OF AUTHORITIES - cont'd

Page(s)

C tenet Bestel | Lesialative M ial

oF YE | eens 6

oF ee 8 | eee eee e 5-6

oF eee passim

U.S. Const. amend. V1................ccccccceeeeeee 6, 8,9

NON ae 6

Del. Declaration of Kkights of 1776,

Gs BID edecsinnsitincenstensintnsinviansiins edaeoneniniite 12

Md. Const. of 1776, Declaration of Rights,

I Fie nivinteniereicsnioldindiciivbiciendinennins 12

Va. Declaration of Rights of 1776, § 8 ..... 11-12

An Act appointing an Order to Justices of

Peace for the Bailement of Prisoners, 1 &

2 Phil. & M., ch. 13, § 1 (1554) (Eng.) .. 22

An Acte to take the Examination of

Prysoners suspected of Manslaughter or

Felonye, 2 & 3 Phil. & M., ch. 10, § 1

IE cleituncinshassanntaecednetieeiilénians 22

1 Annals of Cong. 448 (Joseph Gales ed.,

Saat iiistiaiechauniiehbandeninsinstitnenbisaahidiahiebihiaeasasdanls 13, 14

Akhil Reed Amar, /ntratextualism, 112

Harv. L. Rev. 747 (1906).............0....2......... 5

vi

TABLE OF AUTHORITIES - cont’d

Page(s)

1 Richard Burn, The Justice of the Peace

and Parish Officer (21st ed., London, A.

Strahan 1810) (1755) ....................2000-++- 17, 23

Thea A. Cohen, Note, Self-Incrimination

and Separation of Powers, 100 Geo. L.dJ.

RR CRE ERTS A 6

Thomas Y. Davies, Farther and Farther

Recharacterization of the Right Against

Self-Incrimination as a “Trial Right” in

Chavez v. Martinez, 70 Tenn. L. Rev. 987

RETA 8 Se AR AE A OA ai Le 7, 10-11, 14

Thomas Y. Davies, The Supreme Court

Giveth and the Supreme Court Taketh

Away: The Century of Fourth Amendment

“Search and Seizure” Doctrine, 100 J.

Crim. L. & Criminology 933 (2010).......... 16

Donald Dripps, Akhil Amar on Criminal

Procedure and Constitutional Law: “Here

I Go Down That Wrong Road Again,” 74

N.C. L. Rev. 1559 (1906)........................... 23-24

Edward Dumbauld, The Bill of Rights and

What It Means Today (1957) .................... 14

Geoffrey Gilbert, Law of Evidence (3rd ed.,

London, His Majesty's Printers 1769)

SE iciecisintlindhentntichihiihitassnsiineintildennsbiinatinidadies 17

2 Matthew Hale, History of the Pleas of the

Crown (Sollom Emlyn rev. ed., London, E.

ga RASC RR EA 16, 23

Vii

TABLE OF AUTHORITIES - cont’d

Page(s)

2 William Hawkins, A Treatise of the Pleas

of the Crown (4th ed., London, E. Richard-

son and C. Lintot 1762) (1716)..... 16-17, 24-25

G. Jacob, A New Law-Dictionary (6th ed.,

The Savoy, Henry Lintot 1750) ................ 15

John H. Langbein, The Historical Origins of

the Privilege Against Self-Incrimination

at Common Law, 92 Mich. L. Rev. 1047

EE Ae ee 22

John H. Langbein, The Origins of Adversary

Criminal Trial (2003) .................. 23, 24

Leonard W. Levy, Origins of the Fifth

Amendment: The Right Against

Self-Incrimination (Ivan R. Dee 1999)

Se a ee 11, 12, 13, 14

Tracey Maclin, The Prophylactic Fifth

Amendment, 97 B.U. L. Rev. 1047 (2017). 9

James Madison, Speech to the House of

Representatives (June 8, 1789) ................. 13

Michael J. Zydney Mannheimer, Ripeness of

Self-Incrimination Clause Disputes, 95 J.

Crim. L. & Criminology 1261 (2005)......... 11

Eben Moglen, Taking the Fifth: Reconsider-

ing the Origins of the Constitutional Priv-

ilege Against Self-Incrimination, 92 Mich.

Rs Un 13

vill

TABLE OF AUTHORITIES - cont'd

Page(s)

James Parker, Conductor Generalis: or the

Office, Duty and Authority of Justices of

the Peace (New Jersey, James Parker

ee 17-18, 23

The South-Carolina Justice of Peace (3rd

ed., New York, T. & J. Swords 1810).... 17

George Webb, The Office and Authority of a

Justice of Peace (photo. reprt. 1969) (Wil-

liamsburg, William Parks 1736)........... 18

1 Webster’s An American Dictionary of the

English Language (ist ed. 1828)..... 4, 5, 16, 20

2 Webster’s An American Dictionary of the

English Language (Ist ed. 1828)............... 15

l

INTEREST OF AMICI CURIAE'

Amici are scholars of criminal procedure, each of

whom has published a book or law review article in

this area. Amici law professors also teach or have

taught courses in constitutional law or criminal proce-

dure and have devoted significant attention to study-

ing the Fifth Amendment's Self-Incrimination Clause:

Thea Johnson, Associate Professor of Law, Univer-

sity of Maine School of Law

Richard A. Leo, Hamill Family Chair Professor of

Law and Social Psychology and Dean’s Circle Scholar,

University of San Francisco School of Law

Tracey Maclin, Professor of Law and Joseph

Lipsitt Faculty Research Scholar, Boston University

School of Law

Michael J.Z. Mannheimer, Professor of Law and

Associate Dean for Faculty Development, Northern

Kentucky University, Chase College of Law

David Rossman, Professor of Law and Director,

Criminal Law Clinical Programs, Boston University

School of Law

George C. Thomas III, Rutgers University Board

of Governors Professor of Law and Judge Alexander P.

' The parties have consented to the filing of this brief and their

letters of consent have been filed with the Clerk. Under Rule 37.6

of the Rules of this Court, amici state that no counsel for a party

authored this brief in whole or in part, and no counsel or party

made a monetary contribution intended to fund the preparation

or submission of this brief. No person other than amici or their

counsel made a monetary contribution to its preparation or sub-

mission.

2

Waugh, Sr. Distinguished Scholar, Rutgers University

School of Law?

SUMMARY OF ARGUMENT

The Self-Incrimination Clause provides that “|n]jo

person .. . shall be compelled in any criminal case to

be a witness against himself.” U.S. Const. amend. V.

In Chavez v. Martinez, this Court held that even if a

person is coerced into making incriminating state-

ments, the Clause is not violated if those statements

are never used in any part of a “criminal case.” 538

U.S. 760, 766 (2003) (plurality opinion). This case

raises an important question left unanswered by

Chavez: when does a “criminal case” commence?

Here, respondent Matthew Vogt was formally

charged in Kansas state court with two felony counts,

and the government introduced allegedly coerced and

incriminating statements as evidence against him at a

probable cause hearing. See Pet. App. 3a-4a; Resp. Br.

6. As a result, Vogt’s rights under the Self-Incrimina-

tion Clause were violated because—as the text, struc-

ture, and history of the Constitution all make clear—a

probable cause hearing after formal charges are

brought is plainly part of a “criminal case.”

To start, as Founding-era usage reflects, the broad

phrase “any criminal case” plainly includes pre-trial

probable cause hearings. This definition also comports

with other uses of the term “case” in the Constitution.

For example, Article III uses the term “Case” to refer

to proceedings over which a court has jurisdiction, and

the Grand Jury Clause uses the term “case” in the con-

text of describing how legal proceedings may be initi-

ated. Moreover, the use of the term “criminal case”

2 Institution names are provided for purposes of affiliation only.

3

contrasts notably with the Sixth Amendment's use of

the narrower term “criminal prosecution.”

The use of this broad language is consistent with

the Self-Incrimination Clause’s placement in the Fifth

Amendment, which includes other rights related to the

initiation of criminal proceedings, rather than in the

Sixth Amendment, which focuses on the legal protec-

tions that apply once a criminal prosecution has be-

gun. Indeed, the drafting history of the Bill of Rights

confirms that the decision to include the Clause in the

Fifth Amendment, and to use the broad “in any crimi-

nal case” language, was a considered one on the part

of the Bill of Rights’ Framers.

Finally, narrowly construing the scope of the

Clause would not only be at odds with its plain text, it

would also be at odds with the historical foundations

of the privilege. As this Court has recognized, the priv-

ilege was a reaction against “putting the accused upon

his oath and compelling him to answer questions,” Doe

v. United States, 487 U.S. 201, 212 (1988), reflecting

the Founders’ rejection of the notion that “the prosecu-

tion should be free to build up a criminal case, in whole

or in part, with the assistance of enforced disclosures

by the accused,” Ullmann v. United States, 350 U.S.

422, 501 (1956) (quoting Ma/fie v. United States, 209

F.2d 225, 227 (1st Cir. 1954)). Using coerced state-

ments at a pre-trial probable cause hearing violates

that principle no less than using them at trial.

For all these reasons, a “criminal case” includes a

pre-trial probable cause hearing, and this Court

should hold that the use of coerced and incriminating

testimony at such a proceeding violates the Self-In-

crimination Clause.

4

ARGUMENT

I. THE TEXT, STRUCTURE, AND DRAFTING

HISTORY OF THE CONSTITUTION

DEMONSTRATE THAT THE SELF-INCRIM-

INATION CLAUSE IS VIOLATED WHEN CO-

ERCED, INCRIMINATING STATEMENTS

ARE INTRODUCED AT PRE-TRIAL PROBA-

BLE CAUSE HEARINGS.

1. The Fifth Amendment to the Constitution pro-

vides that “[n]o person ... shall be compelled in any

criminal case to be a witness against himself.” U.S.

Const. amend. V. As this Court has long recognized,

this Amendment is violated when compelled state-

ments are used “in any criminal case.” Mitchell v.

United States, 526 U.S. 314, 327 (1999). The term

“criminal case” plainly includes pre-trial probable

cause hearings that occur after formal charges are

brought.

When the Fifth Amendment was adopted, the

term “criminal case” was commonly understood to en-

compass proceedings that occurred before the begin-

ning of a trial. Noah Webster’s 1828 American Dic-

tionary of the English Language, for example, defines

“case” to include “[a] cause or suit in court.” Case, |

Webster's An American Dictionary of the English Lan-

guage (lst ed. 1828) [hereinafter “Webster's American

Dictionary”].° A “suit in court” plainly begins before

there is a trial. Webster’s dictionary goes on to say

5 The only other definition of “case” in Webster's 1828 diction-

ary that pertains to the law is “[a] question; the state of facts in-

volving a question for discussion or decision; as, the lawyer stated

the case.” Ia. Though this definition is probably not the one the

Founders had in mind when they used the word “case” in the Fifth

Amendment, it is in any event a similarly broad definition that is

not limited to trials alone.

5

that “case is nearly synonymous with cause, whose pri-

mary sense is nearly the same.” Jd. “Cause” in turn is

defined as “[a] suit or action in court; any legal process

which a party institutes to obtain his demand, or by

which he seeks his right or his supposed right.” Cause,

1 Webster's American Dictionary, supra. This broad

definition of “cause” to include any “action in court .. .

which a party institutes” clearly includes all aspects of

a legal proceeding, not a trial alone. See Blyew v.

United States, 80 U.S. (13 Wall.) 581, 595 (1871) (“The

words ‘case’ and ‘cause’ are constantly used as syno-

nyms in statutes and judicial decisions, each meaning

a proceeding in court, a suit, or action,” and “no court

can have jurisdiction of either a case or a cause until if

is presented in the form of an action.” (emphasis

added)). Indeed, were it otherwise, an action which

settles before trial would not be a “case” at all—an out-

come that would be “contrary to the law and to com-

mon sense,” Mitchell, 526 U.S. at 327 (holding that the

Self-Incrimination Clause applies at sentencing).

Importantly, interpreting “case” to include pre-

trial probable cause hearings comports with other uses

of the word “case” in the Constitution. See Akhil Reed

Amar, Intratextualism, 112 Harv. L. Rev. 747, 791

(1999) (interpreters should “us[e] the Constitution as

a dictionary”); Ratzlaf v. United States, 510 U.S. 135,

143 (1994) (“A term appearing in several places . . . is

generally read the same way each time it appears.”).

Article III, for example, provides that

[t]he judicial Power shall extend to all Cases,

in Law and Equity, arising under this Consti-

tution, the Laws of the United States, and

Treaties made, or which shall be made, under

their Authority;—to all Cases affecting Ambas-

sadors, other public Ministers and Consuls;—

6

[and] to all Cases of admiralty and maritime

Jurisdiction.

U.S. Const. art. II], § 2 (emphases added). “Case” in

this context refers to proceedings over which the judi-

cial power extends; in other words, cases over which

an Article III court has jurisdiction, and “Article III

judges preside over many types of judicial proceedings,

including bail hearings, competency hearings, and

probable cause hearings,” Thea A. Cohen, Note, Sel/-

Incrimination and Separation of Powers, 100 Geo. L.dJ.

895, 897 (2012); see Whitmore v. Arkansas, 495 U.S.

149, 155 (1990) (“Article III . . . gives the federal courts

jurisdiction over only ‘cases and controversies, and the

doctrine of standing serves to identify those disputes

which are appropriately resolved through the judicial

process.” (emphasis added)). And significantly, the

only other use of the term in the Bill of Rights explic-

itly refers to a pre-trial proceeding: the Grand Jury

Clause in the Fifth Amendment requires an indict-

ment by a Grand Jury “except in cases arising in the

land or naval forces.” U.S. Const. amend. V (emphasis

added).4

Finally, it is notable that the drafters of the Bill of

Rights used the term “trial” in other Amendments, but

nonetheless used the broader word “case” in the Self-

Incrimination Clause. The Sixth Amendment de-

mands “a speedy and public tria/’ in all criminal pros-

ecutions, U.S. Const. amend. VI (emphasis added),

while the Seventh Amendment ensures that “the right

of trial by jury shall be preserved,” id. amend. VII

‘ The only other reference to “Case” in the Constitution that is

possibly legal also uses the word to refer to the initiation of legal

proceedings, not a trial. See U.S. Const. art. I, § 6 (Senators and

Representatives “shall in all Cases, except Treason, Felony and

Breach of the Peace, be privileged from Arrest.”).

7

(emphasis added). “If the Framers had meant to re-

strict the [Self-Incrimination Clause] to ‘trial,’ they

could have said so.” Thomas Y. Davies, Farther and

Farther from the Original Fifth Amendment: The Re-

characterization of the Right Against Self-Incrimina-

tion as a “Trial Right” in Chavez v. Martinez, 70 Tenn.

L. Rev. 987, 1014 (2003). Instead, they used the capa-

cious term “criminal case.”

2. This interpretation of “case” to include pre-trial

probable cause hearings is not only consistent with the

Amendment’s plain text, it also makes sense in light of

the placement of the Self-Incrimination Clause in the

Fifth rather than the Sixth Amendment.

The Self-Incrimination Clause appears in the

Fifth Amendment alongside other rights that govern

when and how criminal proceedings may be brought.

For instance, the Amendment lists the right not to be

charged with a crime “unless on a presentment or in-

dictment of a Grand Jury.” U.S. Const. amend. V. The

Grand Jury Clause sets out a prerequisite to bringing

an indictment, and thus is violated at the time of in-

dictment, not at trial. The Fifth Amendment also sets

forth the right not to “be subject for the same offense

to be twice put in jeopardy of life or limb.” Jd. The

Double Jeopardy Clause similarly prohibits the gov-

ernment from indicting a defendant a second time for

the same crime. “The prohibition is not against being

twice punished, but against being twice put in jeop-

ardy.” Price v. Georgia, 398 U.S. 323, 326 (1970) (quot-

ing United States v. Ball, 163 U.S. 662, 669 (1896)); see

Abney v. United States, 431 U.S. 651, 659 (1977) (al-

lowing interlocutory appeal of pretrial motion seeking

to dismiss an indictment on double jeopardy grounds).

In short, the privilege against self-incrimination

appears with other Fifth Amendment rights that gov-

ern when the government can bring criminal

8

proceedings—rights that necessarily can be violated

pre-trial. The Fifth Amendment’s Self-Incrimination

Clause is no different. Cf. United States v. Balsys, 524

U.S. 666, 673 (1998) (holding that the Fifth Amend-

ment’s reference to “criminal case” does not include

foreign criminal prosecutions because the privilege ap-

pears “in the company of guarantees of grand jury pro-

ceedings, defense against double jeopardy, due pro-

cess, and compensation for property taking,” and

“none of these provisions is implicated except by action

of the government that it binds”).

If the Self-Incrimination Clause could be violated

only when compelled statements are used at trial, it

would have made far more sense to include it in the

Sixth Amendment. That Amendment “[o]n its face . . .

is activated only when a criminal prosecution has be-

gun and extends only to those persons who have been

‘accused’ in the course of that prosecution.” United

States v. Marion, 404 U.S. 307, 313 (1971). Notably,

the Sixth Amendment differs from the Fifth Amend-

ment in two important respects. First, the Fifth

Amendment applies broadly to “person{s],” U.S. Const.

amend. V, rather than simply “the accused,” id.

amend. VI, suggesting that it—unlike the Sixth

Amendment—is not limited to the period after formal!

charges are brought. Second, the Fifth Amendment

applies to “any criminal case,” id. amend. V, rather

than to “all criminal prosecutions,” id. amend. VI.

As this Court has explained, “[a] criminal prosecu-

tion under article 6 of the amendments is much nar-

rower than a ‘criminal case,’ under article 5 of the

amendments.” Counselman v. Hitchcock, 142 U.S.

547, 563 (1892), overruled in part on other grounds,

Kastigar v. United States, 406 U.S. 441 (1972); see Bal-

sys, 524 U.S. at 672 (noting “the textual contrast be-

tween the Sixth Amendment ... and the Compelled

9

Self-Incrimination Clause, with its facially broader

reference to ‘any criminal case”); Rothgery v. Gillespie

Cty., 554 U.S. 191, 222 (2008) (Thomas, J., dissenting)

(finding it “significant that the Framers used the

words ‘criminal prosecutions’ in the Sixth Amendment

rather than some other formulation such as... . ‘crim-

inal cases” and noting that “the difference in phrase-

ology was not accidental”). A criminal “prosecution”

commences once “adversary judicial proceedings

ha[ve] been initiated.” United States v. Gouveia, 467

U.S. 180, 192 (1984); see generally Counselman, 142

U.S. at 563 (Sixth Amendment applies in “a criminal

prosecution against a person who is accused and who

is to be tried by a petit jury.”).

Given these textual differences, it makes sense

that the Sixth Amendment’s focus is on “procedural

rights of the criminally accused after indictment.”

Tracey Maclin, The Prophylactic Fifth Amendment, 97

B.U. L. Rev. 1047, 1062 (2017). First, the Amendment

guarantees “a speedy and public trial,” U.S. Const.

amend. VI, a right which this Court has held applies

only after “some charge or arrest” in a criminal prose-

cution, Marion, 404 U.S. at 319 (quoting Note, The

Right to a Speedy Trial, 57 Colum. L. Rev. 846, 848

(1957)); see United States v. MacDonald, 456 U.S. 1, 6-

7 (1982) (“[N]o Sixth Amendment right to a speedy

trial arises until charges are pending.”). Similarly, the

Amendment guarantees the right to “an impartial

jury,” U.S. Const. amend. VI, which by definition ap-

plies during jury selection and trial.

The Sixth Amendment also guarantees the right

“to be confronted with the witnesses against [the ac-

cused]” and the right to “have compulsory process for

obtaining witnesses in his favor,” id.—protections that

courts have recognized most clearly apply after the in-

itiation of a criminal prosecution. See United States v.

10

Williams, 504 U.S. 36, 52 (1992) (rejecting argument

that target of a grand jury investigation may “tender

his own defense”); see also Gerstein v. Pugh, 420 U.S.

103, 119 (1975) (probable cause hearing need not be

“accompanied by the full panoply of adversary safe-

guards—counsel, confrontation, cross-examination,

and compulsory process for witnesses,” that must be

present at trial); Peterson v. California, 604 F.3d 1166,

1169-70 (9th Cir. 2010) (finding no right to confront

witnesses at a preliminary hearing and collecting

cases).

To be sure, as the United States notes, “[sjome

Sixth Amendment rights attach and apply before

trial.” U.S. Br. 25. The Sixth Amendment right to

counsel, for example, extends to every “critical stage”

in a criminal prosecution, Hamilton v. Alabama, 368

U.S. 52, 54 (1961); see, e.g., Coleman v. Alabama, 399

U.S. 1, 10 (1970) (Sixth Amendment right to counsel

applies at preliminary hearing to determine whether

there was sufficient evidence against the accused and

to fix bail); Powell v. Alabama, 287 U.S. 45, 57 (1932)

(Sixth Amendment right to counsel exists “from the

time of their arraignment until the beginning of their

trial”). But, significantly, there is no right to counsel

before a criminal prosecution begins—for instance, be-

fore a grand jury or during an initial probable cause

hearing. See United States v. Mandujano, 425 U.S.

564, 581 (1976) (plurality opinion) (“Under settled

principles the witness may not insist upon the pres-

ence of his attorney in the grand jury room.”); Gerstein,

420 U.S. at 122 (finding no right to counsel at probable

cause determination to justify pretrial custody). The

Fifth Amendment, by contrast, applies more broadly

to “any criminal case.”

In short, “the right against compelled self-accusa-

tion is in the wrong amendment to be a ‘trial! right.”

11

Davies, Farther and Farther, supra, at 1009; see Mi-

chael J. Zydney Mannheimer, Ripeness of Self-Incrim-

ination Clause Disputes, 95 J. Crim. L. & Criminology

1261, 1322 (2005) (“It appears that the placement of

the Self-Incrimination Clause in the Fifth Amendment

rather than the Sixth signifies that a ‘criminal case’

can exist before a ‘criminal prosecution[]’ com-

mences.”); Leonard W. Levy, Origins of the Fifth

Amendment: The Right Against Self-Incrimination

427 (Ivan R. Dee 1999) (1968) (“[T]he location of the

self-incrimination clause in the Fifth Amendment ra-

ther than the Sixth proves that the [Framers] did not

intend to restrict that clause to the criminal defendant

only nor only to his trial.”).

3. In addition to the text and structure of the Con-

stitution, the history of the Fifth Amendment’s draft-

ing suggests that the Founders intended for the term

“criminal case” to apply broadly, including at proceed-

ings like the pre-trial probable cause hearing at issue

here.

The inclusion of the Self-Incrimination Clause in

the Fifth Amendment rather than in the Sixth Amend-

ment—and its application in “any criminal case” ra-

ther than in a “criminal prosecution”—appears to have

been no accident. The Bill of Rights was largely mod-

eled on state constitutional provisions, particularly

Section 8 of the Virginia Declaration of Rights. See id.

at 409 (“Section 8 . . . became a model for other states

and for the United States Bill of Rights.”). Section 8 of

Virginia’s constitution included a privilege against

self-incrimination. The Section read in full:

That in all capital or criminal prosecutions a

man has a right to demand the cause and na-

ture of his accusation, to be confronted with

the accusers and witnesses, to call for evidence

in his favor, and to a speedy trial by an

12

impartial jury of twelve men of his vicinage,

without whose unanimous consent he cannot

be found guilty; nor can he be compelled to give

evidence against himself, that no man be de-

prived of his liberty, except by the law of the

land or the judgment of his peers.

Va. Declaration of Rights of 1776, § 8 (emphasis

added). The Virginia privilege against self-incrimina-

tion therefore appeared amidst the prosecution-fo-

cused rights that later made their way into the Sixth

Amendment. In addition, the Virginia Declaration of

Rights articulated a narrower privilege than the Fifth

Amendment's Self-Incrimination Clause, limiting its

reach to “capital or criminal prosecutions.”

This more limited right in Virginia’s Declaration

of Rights contrasted with similar rights in other state

constitutions at the time. For instance, Delaware—

which also modeled its bill of rights on Virginia’s—“in-

troduced a subtle but crucial change by making [the

privilege] an independent section instead of inserting

it among the enumerated rights of the criminally ac-

cused.” Levy, supra, at 409. Moreover, Delaware al-

tered the language to read: “That no Man in the Courts

of common Law ought to be compelled to give Evidence

against himself.” Del. Declaration of Rights of 1776,

art. 15. Unlike Virginia, Delaware's privilege ex-

tended to “Courts of common Law,” not merely crimi-

nal prosecutions. Maryland similarly adopted a

broader provision, declaring that “no man ought to be

compelled to give evidence against himself, in a com-

mon court of law, or in any other court.” Md. Const. of

1776, Declaration of Rights, art. XX (emphasis added).

As the First Congress considered a federal Bill of

Rights, New York, North Carolina, and Rhode Island

all sent proposals for a Bill of Rights that included a

privilege against self-incrimination that mirrored

13

Virginia’s formulation of the right—listed with other

prosecution-focused rights and limited to a criminal

prosecution. See Levy, supra, at 420-21. Rather than

adopt that model, however, James Madison placed the

self-incrimination clause as “part of a miscellaneous

article” separate from what became the Sixth Amend-

ment. Jd. at 422; see Eben Moglen, Taking the Fifth:

Reconsidering the Origins of the Constitutional Privi-

lege Against Self-Incrimination, 92 Mich. L. Rev. 1086,

1122 (1994) (“Madison proposed an article containing

a series of guarantees surrounding jury trial as well as

a more general article concerning judicial process.”).

That miscellaneous article—which later became the

Fifth Amendment, read:

No person shall be subject, except in cases of

impeachment, to more than one punishment or

one trial for the same offence; nor shall be com-

pelled to be a witness against himself; nor be

deprived of life, liberty, or property, without

due process of law; nor be obliged to relinquish

his property, where it may be necessary for

public use, without a just compensation.

1 Annals of Cong. 448, 451—52 (Madison) (1789) (Jo-

seph Gales ed., 1790).° In addition to separating the

® It is also noteworthy that in an early speech to the House of

Representatives, Madison suggested inserting most of the provi-

sions that later became separate Amendments into the limita-

tions on the power of Congress in Article I, Section 9 of the Con-

stitution. See James Madison, Speech to the House of Rey resent-

atives (June 8, 1789), in 1 Annals of Cong. 448-59. In that pro-

posal, Madison grouped the Self-Incrimination Clause in a para-

graph with other now-Fifth Amendment rights rather than a dif-

ferent paragraph that compiled the “criminal prosecution|[]"

rights that later became the Sixth Amendment. /d. Later, the

select committee that reviewed this proposal moved the para-

graph of now-Sixth Amendment rights to a proposed revision to

Article III, Section 2, but left the Self-Incrimination Clause

14

privilege from other trial-focused rights, Madison also

used language that was notably more similar to Dela-

ware’s and Maryland’s broader formulation of the

right. By its plain terms, this version of the Clause

“applied to civil as well as criminal proceedings and in

principle to any stage of a legal inquiry, from the mo-

ment of arrest in a criminal case, to the swearing of a

deposition in a civil one.” Levy, supra, at 423.

As the Bill of Rights was being debated in the

House of Representatives, however, Representative

John Laurence of New York worried that “a general

declaration” was “in some degree contrary to laws

passed,” and “he thought it ought to be confined to

criminal cases.” 1 Annals of Cong. 782. While it is not

entirely clear what “laws passed” Representative Lau-

rence may have been referencing, compare Levy, su-

pra, at 425-26, with Davies, Farther and Farther, su-

pra, at 1017 & n.141, what is clear is that his proposal

to add “in any criminal case” was designed to limit the

privilege against self-incrimination to criminal, not

civil, cases, see Browning-Ferris Indus. of Vermont,

Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 294 (1989)

(O'Connor, J., concurring in part and dissenting in

part) (The Framers “decid[ed] to confine the benefits of

the Self-Incrimination Clause of the Fifth Amendment

to criminal proceedings.” (emphasis added)). There is

no evidence that the phrase “in any criminal case” was

added to restrict the right to criminal trials. In short,

the drafting history confirms that the placement of the

Self-Incrimination Clause in the Fifth Amendment

and its application to “any criminal case” rather than

to a “criminal prosecution” was a considered choice on

the part of the Founders.

among other now-Fifth Amendment rights to be inserted into Ar-

ticle |. See Edward Dumbauld, The Bill of Rights and What It

Means Today 210-12 (1957).

15

4. Ignoring the Self-Incrimination Clause’s plain

reference to “any criminal case,” petitioner argues that

the word “witness” in the Clause means that the

Clause protects only against the use of compelled tes-

timony at trial, even though a plurality of this Court

has already suggested that the key to deciding the

scope of the Clause is determining the meaning of the

term “criminal case,” not the term “witness.” See

Chavez, 538 U.S. at 767 (plurality opinion) (stating

that the Self-Incrimination Clause is violated when

compelled statements are “use[d] in a criminal case,”

but declining to decide “the precise moment when a

‘criminal case’ commences”). And, as previously dis-

cussed, the broad term “criminal case” clearly includes

pre-trial probable cause hearings. In any event, peti-

tioner offers no evidence to support its cramped read-

ing of the term “witness,” and the text, historical evi-

dence, and this Court’s precedents all refute it.

To start, the word “witness” plainly includes indi-

viduals who give testimony at pre-trial proceedings.

Webster's 1828 Dictionary defines “witness” simply as

“foJne who gives testimony.” Witness, 2 Webster's

American Dictionary, supra. “Testimony” in turn

means “[a] solemn declaration or affirmation made for

the purpose of establishing or proving some fact” and

typically occurs “in judicial proceedings.” Testimony,

2 Webster’s American Dictionary, supra. An even ear-

lier dictionary linked the definition of “witness” to the

definition of “cause”: a “witness” is “one that gives Ev-

idence in a Cause.” G. Jacob, A New Law-Dictionary

83 (6th ed., The Savoy, Henry Lintot 1750). Nowhere

does either dictionary limit the terms “witness” or “tes-

timony” to those who give testimony or evidence at

trial.

The term “witness” was also routinely used at the

Founding to describe an individual who gave

16

testimony during pre-trial proceedings. As this Court

has explained, prior to the Founding, the English

“Marian bail and committal statutes required justices

of the peace to examine suspects and witnesses in fel-

ony cases” at pre-trial examinations, and to later “cer-

tify the results to the court.” Crawford v. Washington,

541 U.S. 36, 44 (2004) (emphasis added). In many

ways, Marian pre-trial committal and bail proceedings

were the legal antecedents to the modern probable-

cause hearing. See Thomas Y. Davies, The Supreme

Court Giveth and the Supreme Court Taketh Away:

The Century of Fourth Amendment “Search and Sei-

zure” Doctrine, 100 J. Crim. L. & Criminology 933, 943

n.6 (2010).

It is notable, then, that legal treatises and manu-

als from before and at the time of the Founding con-

sistently referred to individuals who testified before a

justice of the peace pre-trial as “witnesses.” In Sir

Matthew Hale’s famous treatise History of the Pleas of

the Crown, first published in 1736, he explained that

justices of the peace in pre-trial committal proceedings

“ought to take the examinations of felons (without

oath,) and the informations of accusers or witness

(upon oath,) and return them to the justices of gaol-

delivery.” 2 Matthew Hale, History of the Pleas of the

Crown 51-52 (Sollom Emlyn rev. ed., London, E. Rider

1800) (1736) (emphasis added).° Another leading trea-

tise of the time, Sergeant William Hawkins’s Pleas of

the Crown, explained that before a witness’s statement

from a pre-trial proceeding could be introduced at

trial, prosecutors must “make Oath that [they] have

used all their Endeavours to find the Witness, but can-

not find him.” 2 William Hawkins, A Treatise of the

® “Gaol” means “[a] prison; a place for the confinement of debt-

ors and criminals.” 1 Webster's American Dictionary, supra.

17

Pleas of the Crown 430 (4th ed., London, E. Richardson

and C. Lintot 1762) (1716); see Geoffrey Gilbert, Law

of Evidence 140 (3rd ed., London, His Majesty’s Print-

ers 1769) (1754) (stating that the examination of “a

Witness examined before the Coroner” could be admit-

ted at a later trial if the witness had died).

Richard Burn’s justice of the peace manual simi-

larly and repeatedly used the term “witness” to refer

to individuals questioned in pre-trial examinations.

See 1 Richard Burn, The Justice of the Peace and Par-

ish Officer 760-63 (21st ed., London, A. Strahan 1810)

(1755). In the “Examination” chapter—having to do

with a pre-trial Marian examination—the manual

states that testimony “of other witnesses, whom the

justice may bring before him by his warrant” may be

later “given in evidence against the party confessing.”

Id. at 760. He goes on to say that “if a quaker be wit-

ness, his affirmation must not be taken in this case”

because Quakers would not take an oath. /d. Finally,

the manual provides a template for recording the

“fi]nformation of a witness” and for obtaining a “[w]ar-

rant for a witness” to appear at a Marian pre-trial pro-

ceeding. Jd. at 762-63.

By the same token, justice of the peace manuals

used in American colonies around the time of the

Founding used the term “witness” to refer to individu-

als giving testimony at Marian pre-trial examinations.

See, e.g., The South-Carolina Justice of Peace 165 (3rd

ed., New York, T. & J. Swords 1810) (“[W]here [an ac-

cused] person is not bailed, but committed to ward, the

justice or justices who commit him, shall, before such

commitment, take the like examination and infor-

mation, .. . and shall in like manner bind over the wit-

nesses, and certify the whole as above.”); James Par-

ker, Conductor Generalis: or the Office, Duty and Au-

thority of Justices of the Peace 174 (New Jersey, James

18

Parker 1764) (referring, in the chapter related to pre-

trial examinations, to “other witnesses; whom the jus-

tice may bring before him by his warrant for th[e] pur-

pose” of giving evidence); George Webb, The Office and

Authority of a Justice of Peace 109 (photo. reprt. 1969)

(Williamsburg, William Parks 1736) (‘When any Per-

son shall be taken for any Criminal Offence, and

brought before a Justice of Peace, he is to examine the

Prisoner, and Witnesses.”).

Confirming this expansive understanding of the

term “witness,” this Court explained in Crawford v.

Washington that “witness” for purposes of the Con-

frontation Clause broadly refers to “[a]n accuser who

makes a formal statement to government officers.”

Crawford, 541 U.S. at 51.’ Again and again since

Crawford, this Court has referred to individuals who

provide testimony pre-trial—and sometimes even be-

fore judicial proceedings begin at all—as “witmesses”

providing “testimony.” See, e.g., Ohio v. Clark, 135 S.

Ct. 2173, 2179 (2015) (referring to “statements by a

witness during police questioning at tae station

house”); Michigan v. Bryant, 562 U.S. 344, 356 (2011)

(noting that some but “not all those questioned by the

police are witnesses’); Melendez-Diaz v.

? This Court's opinion in Crawford repeatedly uses the word

“witness” to refer to individuals who gave testimony at pre-trial

proceedings. See, e.g., Crawford, 541 U.S. at 43 (Justices of the

peace or other officials examined suspects and witnesses before

trial.” (emphasis added)); id. at 44 (noting that “treason statutes

required witnesses to confront the accused ‘face to face’ at his ar-

raignment” (emphasis added)); id. at 52 (referring to “statements

that were made under circumstances which would lead an objec-

tive witness reasonably to believe that the statement would be

available for use at a later trial” (quoting Br. for Nat'l Ass'n of

Crim. Def Lawyers, et al. as Amici Curiae 3)); id. (‘Under the

Marian statutes, witnesses were typically put on oath, but sus-

pects were not.”).

19

Massachusetts, 557 U.S. 305, 309 (2009) (“A witness's

testimony against a defendant is . . . inadmissible un-

less the witness appears at trial.”); Davis v. Washing-

ton, 547 U.S. 813, 826-27 (2006) (“The product of [an]

interrogation [by a law enfurcement officer], whether

reduced to a writing signed by the declarant or embed-

ded in the memory (and perhaps notes) of the interro-

gating officer, is testimonial.”).

Petitioner is correct of course that the Sixth

Amendment's Confrontation and Compulsory Process

Clauses—both of which use the word “witness”—pro-

tect rights within the context of a criminal prosecution

and may not apply at certain pre-trial proceedings.

See Pet’r Br. 22. But they are wrong that this limita-

tion exists because the Sixth Amendment uses the

word “witness.” After all, the term “witness” includes

even “[s]tatements taken by police officers in the

course of interrogations,” which are “testimonial under

even a narrow standard.” Crawford, 541 U.S. at 52.

Rather, the Sixth Amendment’s scope is limited by its

use of the terms “criminal prosecution” and “the ac-

cused.” See supra at 8-9; Resp. Br. 24-25. To equate

the scope of the Self-Incrimination Clause and the

Confrontation Clause simply because both use the

term “witness” would be like equating diamonds and

coal simply because both contain carbon.

The United States, for its part, argues that the

phrase “a witness against himself’ means that the

Self-Incrimination Clause is only violated when a com-

pelled statement is introduced to “establish a defend-

ant’s criminal responsibility—his guilt and his punish-

ment”—and that this can take place only at trial. U.S.

Br. 10-11. But nothing about the phrase “a witness

against himself” requires this reading. As detailed

above, “the word ‘witness’ in the constitutional text

limits the relevant category of compelled

20

incriminating communications to those that are ‘testi-

monial’ in character,” United States v. Hubbell, 530

U.S. 27, 34 (2000), not to testimonial statements at

trial. And to be a witness “against oneself’ simply

means that a person’s testimony must be incriminat-

ing. See Hiibel v. Sixth Judicial Dist. Court, 542 U.S.

177, 189 (2004) (noting that the Clause prohibits the

use of statements that are “testimonial, incriminating,

and compelled”). A statement is incriminating when

the “danger to be apprehended” is “real and apprecia-

ble, with reference to the ordinary operation of law in

the ordinary course of things.” Brown v. Walker, 161

U.S. 591, 599 (1896). Indeed, at the time of the Found-

ing, “incriminate” meant “[t]o accuse; to charge with a

crime or fault,” Jncriminate, 1 Webster's American

Dictionary, supra, not to find one guilty at trial. See

United States v. Burr, 25 F. Cas. 38, 40 (C.C.D. Va.

1807) (No. 14,692E) (C.J. Marshall, presiding)

(“[E]very witness is privileged not to accuse himself.”

(emphasis added)). Thus, a statement is »ncriminating

if it presents an appreciable danger of apprehension—

a standard easily met when a statement is used 9+ a

pre-trial probable cause hearing. The United S’s:es

fails to explain why a statement could be incriminat-

ing only at trial, and that view is refuted by this

Court's precedents.

In any event, even if the United States were cor-

rect that the use of a coerced statement must somehow

“expose a defendant to the risk of conviction or punish-

ment,” U.S. Br. 11, the probable cause hearing at issue

here certainly clears that hurdle. As this Court has

noted, a preliminary hearing is simply a “less search-

ing exploration into the merits of a case than a trial”

to determine “whether probable cause exists to hold

the accused for trial.” Barber v. Page, 390 U.S. 719,

725 (1968); Resp. Br. 17 n.4. Such an inquiry, then,

21

surely “expose|s}] a defendant to the risk of conviction

or punishment” insofar as a finding of probable cause

is a necessary, even if not sufficient, step on the path

to conviction and punishment. In short, the language

of the Self-Incrimination Clause giving every person

the right not to be a “witness against himself” readily

encompasses the use of coerced and incriminating

statements at a pre-trial probable cause hearing.

***

In sum, the plain text of the Self-Incrimination

Clause, in conjunction with the structure of the Bill of

Rights and the history of its drafting, make clear that

a “criminal case” includes pre-trial probable cause

hearings such as the one at issue here. As the next

Section discusses, construing the Clause more nar-

rowly would not only be at odds with the Constitution's

text and structure, but also with historical practice at

the time of the Founding.

Il. THE HISTORICAL PRACTICE AT THE

TIME OF THE FOUNDING CONFIRMS

THAT THE SELF-INCRIMINATION

CLAUSE IS VIOLATED WHEN COERCED,

INCRIMINATING STATEMENTS ARE IN-

TRODUCED AT PRE-TRIAL PROBABLE

CAUSE HEARINGS.

The privilege against self-incrimination “registers

an important advance in the development of our lib-

erty—‘one of the great landmarks in man’s struggle to

make himself civilized.” Ullmann, 350 U.S. at 426

(quoting Erwin N. Griswold, The Fifth Amendment To-

day 7 (1955)).

As this Court has explained, the Self-Incrimina-

tion Clause was “developed by painful opposition to a

course of ecclesiastical inquisitions and Star Chamber

22

proceedings occurring several centuries ago.” Michi-

gan v. Tucker, 417 U.S. 433, 440 (1974). Indeed, as

late as the Founding, pre-trial practice was still in

many ways “designed to induce the accused to bear

witness against himself promptly.” John H. Langbein,

The Historical Origins of the Privilege Against Self-In-

crimination at Common Law, 92 Mich. L. Rev. 1047,

1061 (1994). Most prominently, the colonies continued

to hold procedures like those first described in the Eng-

‘ish Marian Bail and Committal Statutes of 1554 and

1555. Under those laws, a justice of the peace was re-

quired to “take the examination” of an accused individ-

ual promptly after the defendant was apprehended.

See An Acte to take the Examination of Prysoners sus-

pected of Manslaughter or Felonye, 2 & 3 Phil. & M.,

ch. 10, § 1 (1555) (Eng.) (committal statute). The stat-

ute required a justice of the peace to “put in writing”

anything the accused person said that was “material

to prove the Felony,” id., and to “transmit this docu-

ment to the trial court, where it could be used in evi-

dence against the accused,” Langbein, Privilege

Against Self-Incrimination, supra, at 1060; see Craw-

ford, 541 U.S. at 44; see also An Act appointing an Or-

der to Justices of Peace for the Bailement of Prisoners,

1 & 2 Phil. & M., ch. 13, § 1 (1554) (Eng.) (authorizing

justices of the peace to obtain incriminating state-

ments from suspects at pre-trial interrogations).

The Self-Incrimination Clause was a reaction

against “putting the accused upon his oath and com-

pelling him to answer questions” in these pre-trial in-

terrogations, Doe, 487 U.S. at 212, reflecting the

Founders’ rejection of the notion that “the prosecution

should be free to build up a criminal case, in whole or

in part, with the assistance of enforced disclosures by

the accused,” Ullmann, 350 U.S. at 501 (quoting Maf-

fie, 209 F.2d at 227). By the time of the Founding,

23

justices of the peace were prohibited from questioning

an arrestee under oath at these committal or bail pro-

ceedings. See, e.g., 2 Hale, supra, at 120 (Justice of the

peace is “to take the examination of the person ac-

cused, but this is to be without oath and put into writ-

ing’); Burn, supra, at 760 (“The examination of the

person accused ought not to be upon oath.”); Parker,

supra, at 174 (“[T]he examination of the person ac-

cused, ought not to be upon oath.”).8

Yet petitioner's theory would permit that very

practice, allowing the government to place a defendant

under oath at a probable cause hearing—or even a

Marian committal or bail proceeding if those still ex-

isted—and force him to testify against himself,

thereby subjecting him “to the cruel trilemma of self-

accusation, perjury or contempt,” Murphy v. Water-

front Comm'n, 378 U.S. 52, 55 (1964). After all, so long

as the government promised not to use those state-

ments at trial, the forced incriminatory testimony—

made on pain of perjury on the one hand, or contempt

on the other—would not, in petitioner’s view, violate

the Clause. This defies common sense and turns its

back on the historical understandings of the Clause at

the time of the Founding. See Donald Dripps, Akhil

Amar on Criminal Procedure and Constitutional Law:

* Significantly, a committal or bail hearing was the only time a

defendant could be questioned by the government. After all,

“England did not have a professional police force until the 19th

century,” Crawford, 541 U.S. at 53, and so police officers were not

performing interrogations as they do today. Moreover, at trial,

“criminal defendants were deemed incompetent as witnesses,”

Ferguson v. Georgia, 365 U.S. 570, 574 (1961), and therefore did

not testify under oath. John H. Langbein, The Origins of Adver-

sary Criminal Trial 280 (2003) (noting that “the privilege had so

little capacity to affect the treatment of the criminal defendant at

trial, since he was not allowed to be sworn until 1898 in England

(a few decades earlier in many American jurisdictions)’).

24

“Here I Go Down That Wrong Road Again,” 74 N.C. L.

Rev. 1559, 1626 (1996) (noting that at the Founding,

even “[p]rospective jurors and witnesses in civil cases

... could avail themselves of the privilege” and

“[cjourts did not compel them to answer on condition

that their testimony not later be used against them”).°

The United States acknowledges this history, but

then argues that that the reason the “coerced confes-

sions obtained in those pretrial interrogations” were

problematic was because they were “then used to con-

vict the defendant at trial.” U.S. Br. 24. Of course, the

United States is correct that forced statements made

under oath could not be introduced against criminal

defendants at trial. But there is no reason to think

that the Founders were concerned only with the use of

those statements at trial. After all, testimony ob-

tained at these pretrial examinations was used not

only at trial, but also in crafting the indictment. See

Langbein, Adversary Criminal Trial, supra, at 44

n.169 (noting that “indictments ... were usually

drafted by an assistant to the clerk of the peace, some-

times working from Marian pretrial examinations

when the offense in question had been serious enough

to provoke a [justice of the peace’s] investigation”); id.

at 45 (“Most bills of indictment were generated in the

Marian pretrial procedure.”). As Hawkins’s Treatise

explained with regard to an informer’s testimony, “the

® This position also “ignores the reality that criminal justice to-

day is for the most part a system of pleas, not a system of trials.”

Lafler v. Cooper, 566 U.S. 156, 170 (2012). As Respondent ex-

plains, “[gjiven the ubiquity of plea bargaining, the probable

cause hearing is for many defendants their only real chance to

challenge the basis for the charges against [them].” Resp. Br. 57-

58. It would be perverse to allow the government to introduce

compelled, incriminating testimony at a probable cause hearing

to induce a defendant to plead guilty, when that testimony could

never be used against the defendant at trial.

25

Examination of an Informer taken upon oath . . . before

Justices of Peace in pursuance of [the Marian commit-

tal and bail statutes] ... may be given in evidence at

the Trial of such inquisition, or of an Indictment for the

same felony.” 2 Hawkins, supra, at 429 (emphasis

added). Petitioner and the United States offer no rea-

son why the Founders would not have been equally

concerned with the use at the indictment stage of pre-

liminary examination statements made under oath.

In short, the Founders were concerned not just

with the use of coerced statements at trial, but also

with allowing the prosecution “to build > a criminal

case” with “enforced disclosures by the accused,”

Ulimann, 350 U.S. at 427. To prevent this, they

broadly prohibited a person from being “compelled in

any criminal case to be a witness against himself.”

U.S. Const. amend. V. When the government intro-

duces coerced, incriminating statements as evidence

against a person at a probable cause hearing, the gov-

ernment violates that prohibition.

26

CONCLUSION

For the foregoing reasons, the judgment of the U.S.

Court of Appeals for the Tenth Circuit should be af-

firmed.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

ASHWIN P. PHATAK**

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW

Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amici Curiae

*Counsel of Record

December 20, 2017 **Not admitted in

D.C.; supervised by

principals of the firm