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

No. 16-1495

IN THE

Supreme Court of the Anited States

CITY OF HAYS, KANSAS,

Petitioner,

V.

MATTHEW JACK DWIGHT VOGT,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Tenth Circuit

BRIEF OF AMICI CURIAE

NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS AND AMERICAN CIVIL

LIBERTIES UNION IN SUPPORT OF

RESPONDENT

Barbara E. Bergman Jeffrey A. Mandell

NATIONAL ASSOCIATION OF Counsel of Record

CRIMINAL DEFENSE LAWYERS Laura E. Callan

1660 L Street, N.W. Erika L. Bierma

Washington, D.C. 20036 Eileen M. Kelley

Elizabeth C. Stephens

David D. Cole STAFFORD ROSENBAUM LLP

Rachel Wainer Apter 222 W. Washington Ave.,

Ezekiel Edwards Suite 900

AMERICAN CIVIL LIBERTIES Madison, WI 53701

UNION FOUNDATION (608) 256-0226

915 15th Street N.W. jmandell@staffordlaw.com

Washington, D.C. 20005

December 20, 2017 Counsel for Amici Curiae

NE Aa a eae

TABLE OF CONTENTS

Page

STATEMENT OF INTEREST OF

ND evssicesessresavnievedensucccieniiutiaaaniandalion 1

TIE, ciitcenhschicnsisiiasntestecigutiibintisamiaaanaae 3

SUMMARY OF ARGUMENT. .........0.........cccccceeeeeeeeeees 9

THE FIFTH AMENDMENT’S

GUARANTEE AGAINST SELF-

INCRIMINATION APPLIES AT

PRELIMINARY HEARINGG. ........................025. 11

A. This principle is consistent with

the Constitution’s text and with

Iss isc ccccksicvsciiacbiansaimmsnsiadetianpininicennains 11

B. Limiting the Self-Incrimination

Clause’s application to the criminal

trial itself would severely prejudice

IG aos sins ec ccivicnsiasiclnaembabibbeineiaivas 18

C. The government’s policy concerns

do not withstand scrutiny. ..........................6. 24

ERS PR AIUD ixcusesisincesenszcessesentbeseninisataiennanhinniaainn 29

il

TABLE OF AUTHORITIES

Page(s)

Cases

Best v. City of Portland,

554 F.3d 698 (7th Cir. 2009)..............0.000..00000. 14, 24

Blyew v. United States,

EE 13

Chavez v. Martinez,

I no ccsnnsnssmnanoocasees 13, 27

Coleman v. Alabama,

a Wh I cs snenemenennenes 7, 8, 15, 22 ,23

Counselman v. Hitchcock,

EE a CR 14, 15

Higazy v. Templeton,

506 F.3d 161 (2d Cir. 2007) ............................. 14, 24

In re Keijam T.,

602 A.2d 967 (Conn. 1992)..............cccccccccceceeeeeeeeeee 19

Johnson v. New Jersey,

i susbussocoeas 12

Kastigar v. United States,

a sslieuepetounes 14, 26

Lafler v. Cooper,

i 4

Malloy v. Hogan,

IEE: TEE asccenccnctensdastessessecsnccnseceseses 11, 12, 28

il

Melendez-Diaz v. Massachusetts,

Se ey I ariteictcdisrcicnasistumtiesignnisataedeateisin 25

Michigan v. Tucker,

a Be 12, 21

Miranda v. Arizona,

HI scncinnsininiinieneiansssenidaniidaitelanae 2, 12

Missouri v. Frye,

Rs BI iin vscin csisnctnicheiecinndnsinsendasiiiniaitl 4, 15

Mitchell v. United States,

co scnhisscsreeninntinighiannannslinianinns 27, 28

Padilla v. Kentucky,

RRS see =e 4

People v. Dist. Court, 17th Judicial Dist.,

PS —E 19

People v. McBride,

516 N.W.2d 148 (Mich. Ct. App. 1994).................. 19

People v. Melotik,

561 N.W.2d 453 (Mich. Ct. App. 1997).................. 18

Rayyis v. Super. Ct.,

35 Cal. Rptr. 3d 12 (Cal. Ct. App. 2005) ............... 18

Rothgery v. Gillespie Cty.,

EAE ee ene As 14

Sheriff v. Witzenberg,

145 P.3d 1002 (Nev. 2006) .................cccecceeeeeee 18, 19

Sornerberger v. City of Knoxville,

434 F.3d 1006 (7th Cir. 2006).................cccccsseeeeees 13

iv

State v. Bockert,

I, a 19

State v. Carlson,

845 N.W.2d 827 (Minn. Ct. App. 2014) ................. 18

State v. Clark,

I, Sa ccgupeainauninal 18

State v. Haukos,

847 N.W.2d 270 (Minn. Ct. App. 2014)................. 19

State v. Lownes,

499 N.W.2d 896 (S.D. 19938)................c...0ccccceeeeeeees 19

State v. McLellan,

SG PPT Be Ge BBE on ecncccccccccccccscccocecscesscsees 19

State v. Moats,

457 N.W.2d 299 (Wis. 1990) ................cccccccccceeeeeees 18

Stoot v. City of Everett,

582 F.3d 910 (9th Cir. 2009)............................ 13, 24

United States v. Bennett,

BG Ba re Cis I ccccctcncccsecscnsseeseccscesceserssss 22

United States v. Frumento,

re ee Ee IE OD ececececcccctnocencccssccctetesones 26

United States v. Hubbell,

RE, A me NE me 16

United States v. White,

TREE Sere nec ceck renin 25

Constitutional Provisions

es I eres 9, 11, 12, 16

Statutes and Court Rules

TIC TENCE sensinintipeninechisensininghacctnenisuniandiiuascenenl 8

a GN RS Fe ee eae ae 4

Kan. Stat. § 22-2902 (2016) ...................... heaslaienaisiniidgiade 3

I Go I i a cerriccincndipiciencnedepenninnsddadimaciabdiantel 18

Wis. Stat. § 970.03 (2015-16) .............ccccceeeeeeeeeeeeeeeee 20

Other Authorities

James R. Jacobs, Sourcebook of Criminal

Justice Statistics: another defunded

publication, Free Gov't Info. (June 29, 2012).......... 5

Michael D. Pepson & John N. Sharifi,

Lego v. Twomey: The Improbable

Relationship Between an Obscure

Supreme Court Decision and Wrongful

Convictions, 47 Am. Crim. L. Rev. 1185

I a cain enesensiennll 21

Robert E. Scott & William J. Stuntz,

Plea Bargaining as Contract,

101 Yale L. J. 1909 (1992) ................cccccceceeeeeeeeeeees 15

Wayne R. LaFave et al., Criminal

Procedure (4th ed. 2017)........ 3, 6, 7, 8, 9, 18, 19, 23

STATEMENT OF INTEREST

OF AMICI CURIAE!

The National Association of Criminal Defense

Lawyers (NACDL) is a_ nonprofit voluntary

professional bar association that works on behalf of

criminal defense attorneys to ensure justice and due

process for those accused of crime or misconduct.

NACDL was founded in 1958. It has a nationwide

membership of many thousands of direct members,

and up to 40,000 with affiliates. NACDL’s members

include private criminal defense lawyers, public

defenders, military defense counsel, law professors,

and judges. NACDL is the only nationwide

professional bar association for public defenders and

private criminal defense lawyers.

NACDL is dedicated to advancing the proper,

efficient, and just administration of justice. NACDL

files numerous amicus briefs each year, in this Court

and others, seeking to provide assistance in cases

that present issues of broad importance to criminal

defendants, criminal defense lawyers, and the

criminal justice system as a whole. In particular, in

furtherance of NACDL’s mission to safeguard funda-

' Both parties consented to the filing of this amici curiae

brief in support of Respondent. No counsel to a party in this

case authored this brief in whole or in part. No party or party's

counsel made any monetary contribution that was intended to

or did fund the preparation or submission of this brief No

person or entity other than the amici and their counsel, made

any monetary contribution that was intended to or did fund the

preparation or submission of this brief.

2

mental constitutional rights, NACDL frequently

appears as amicus curiae in cases involving the Fifth

Amendment and its state analogues, speaking to the

importance of ensuring that no person is compelled

in any criminal case to be a witness against himself.

NACDL brings a vital perspective to the scope of the

Fifth Amendment and has an interest in protecting a

criminal defendant against the government's use of

compelled, self-incriminating statements in pretrial

criminal proceedings.

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization of

approximately 1.6 million members dedicated to the

principles of liberty and equality embedded in the

United States Constitution. Founded nearly a

century ago, the ACLU has appeared in myriad cases

before this Court, both as merits counsel and as an

amicus curiae, to defend the Bill of Rights. Many of

the ACLU’s efforts have focused on enforcing those

portions of the Bill of Rights having to do with

administration of the criminal justice system. The

ACLU participated as amicus curiae in Miranda v.

Arizona, 384 U.S. 436 (1966), because effectuation of

a person’s right to be free from compelled self-

incrimination is essential to the preservation of our

accusatorial system of criminal justice. More than

fifty years later, protection of the constitutional right

against self-incrimination remains critical to the fair

administration of criminal justice.

3

STATEMENT

1. Most States do not rely on grand juries to

launch every felony criminal prosecution. See Wayne

R. LaFave et al., Criminal Procedure § 15.1(g) (4th

ed. 2017). In states that do not use grand juries

exclusively, a criminal case may be initiated through

the prosecutor's filing of a criminal complaint. The

details of criminal procedure vary, but all non-grand

jury States utilize some form of preliminary hearing

in felony cases after the criminal complaint has been

filed. This hearing can be known by various names,

including preliminary examination, probable cause

hearing, commitment hearing, examining trial, and

bindover hearing. But by any name, the hearing

serves a common purpose: after a criminal complaint

has been filed, the prosecutor must demonstrate, to a

judicial officer’s satisfaction, that sufficient evidence

supports the charge(s) for the case to proceed to trial.

See id., § 14.1(a). At preliminary hearings, a judicial

officer presides and all parties have the right to be

represented by counsel. Jd. In States that utilize a

preliminary hearing, absent the defendant making

an informed waiver of the hearing, see, e.g., Kan.

Stat. Ann. § 22-2902(4) (2016), there can be no

criminal conviction without the judicial officer

finding probable cause for the prosecution to proceed

to trial. See LaFave et al., supra § 14.3(c).

Respondent had a preliminary hear‘ng pursuant to

Kansas law. See Pet’r Br. 3-4; Resp’t Br. 6.

In the federal system, when prosecutors

commence a federal criminal charge by complaint

4

prior to indictment by grand jury, a preliminary

examination is necessary to determine whether

probable cause exists and whether the defendant will

be required to appear at future court appearances.

Fed. R. Crim. P. 5.1(e). At a_ preliminary

examination, a federal magistrate judge presides and

all parties have the right to be represented by

counsel. Jd. The purpose of the _ preliminary

examination—like the _ state-court § preliminary

hearing—is for a judicial officer to determine

whether there is probable cause to sustain the

criminal proceedings. When federal prosecutors

choose to proceed in a way that necessitates a

preliminary examination—by criminal complaint

prior to indictment—the charge cannot proceed

without the magistrate judge finding probable cause.

Fed. R. Crim. P. 5.1(e)-(f).

2. In contemporary American criminal practice, a

preliminary hearing or preliminary examination may

provide a criminal defendant’s only “day in court.” As

this Court has recognized, ours “is for the most part

a system of pleas, not a system of trials.” Lafler v.

Cooper, 566 U.S. 156, 170 (2012). The numbers

amplify this observation. Five years ago, this Court

observed the “simple reality” that “ninety-seven

percent of federal convictions and ninety-four percent

of state convictions are the result of guilty pleas.”

Missouri v. Frye, 566 U.S. 134, 143 (2012); see also

Padilla v. Kentucky, 559 U.S. 356, 372 (2010) (“Pleas

account for nearly 95% of all criminal convictions.”).

These numbers do not appear to have changed.

The most recent compiled statistics for federal

5

convictions show a slight uptick in the incidence of

guilty pleas, to 97.64% (from 97.26%). See Dep’t of

Justice, Bureau of Justice Statistics, Sourcebook of

Criminal Justice Statistics Online, Table 5.22.2010,

http://www.albany.edu/sourcebook/pdf/t52220 10.pdf

(last visited Dec. 19, 2017, 2

For those States—twenty-odd, plus the District of

Columbia—that report their criminal justice

statistics to the National Center for State Courts,

recent years show a continued trend dominated by

guilty pleas. In 2014, those States had jury or bench

trials in less than 2.5% of felony dispositions (33,781

trials from a total of 1,352,192 cases); in 2015, the

incidence of jury or bench trials increased slightly

but remained under 2.8% (36,141 trials from a total

of 1,302,696 cases).* This stark fact underscores the

2 Federal funding for the Sourcebook of Criminal Justice

Statistics was withdrawn, and the 2010 edition is the latest

compilation of that volume. See James R. Jacobs, Sourcebook of

Criminal Justice Statistics: another defunded publication, Free

Gov't Info. (June 29, 2012) https://freegovinfo.info/node/3731

(last visited Dec. 19, 2017).

8 These numbers derive from reports by the Court Statistics

Project, hosted on the National Center for State Courts website,

http:/Awww. ncsc.org/Sitecore/Content/Microsites/Pop Up/Home/C

SP/CSP_ Criminal (last visited Dec. 19, 2017), by choosing the

tables “Felony Jury Trials and Rates” and “Felony Bench Trials

and Rates” for each of the years 2014, 2015, and 2016, and then

aggregating the number of cases resolved through each trial

format in each state for a given year. For both 2014 and 2015,

lowa was excluded from the calculations above because it

reported statistics for bench trials but not for jury trials.

(continued)

6

importance of pretrial proceedings, of which the

preliminary hearing is typically the most extensive

and is the only hearing directed to the elements of

the alleged crime.

3. Preliminary hearings are intended to screen

out baseless prosecutions by ensuring that “there are

substantial grounds upon which prosecution may be

based.” LaFave et al., supra, § 14.1(a). At the

conclusion of a preliminary hearing, the presiding

judicial officer provides an independent analysis of

the charging decision. If the prosecution fails to

show—to the presiding judicial officer’s

satisfaction—probable cause for a felony charge to

proceed to trial, that charge will not move forward in

that particular case. The prosecution may direct law

enforcement to continue investigating and collecting

evidence, but, at least for the moment, the charge is

dismissed. Id. § 14.3.

Preliminary hearings serve several additional

purposes. These include:

For 2016, North Carolina reported numbers (after not doing

so the previous two years) that paint the state as an outlier.

North Carolina reported nearly 75,000 trials out of a total of

112,595 felony dispositions for the year. That rate of 66.3%

suggests that North Carolina tries criminal cases at more than

eight times the incidence of Nebraska, which had the next

highest trial rate for 2016. Setting North Carolina's data to one

side, the numbers remain on trend, with total trial incidence

decreasing to 2.3% (28,901 trials from a total of 1,225,931

cases), based on numbers reported from twenty-three states

and D.C.

7

Laying the groundwork for future

impeachment. Preliminary hearings provide

an opportunity for the defense to elicit

damaging admissions or testimony

inconsistent with a_ witness’s initial

statements to the police. LaFave et al., supra,

§ 14.1; see also Coleman v. Alabama, 399 U.S.

1, 9 (1970) (at preliminary hearing “skilled

interrogation of witnesses by an experienced

lawyer can fashion a vital impeachment tool

for use in cross-examination of the State’s

witnesses at the trial”).

Preserving evidence. Preliminary hearings

provide an opportunity to preserve witness

testimony, which may be used if the witness

should die, disappear, or otherwise become

unavailable to testify. LaFave et al., supra,

§ 14.1; see also Coleman, 399 U.S. at 9 (at

preliminary hearing “interrogation of

witnesses by an experienced lawyer can ...

preserve testimony favorable to the accused of

a witness who does not appear at the trial”).

Illuminating prior bail determinations or

conditions of pretrial release. The evidence

adduced at a preliminary hearing may cause

the court to reassess bail or other terms

imposed as a condition of pretrial release.

LaFave et al., supra, § 14.1; see also Coleman,

399 U.S. at 9 (at preliminary hearing “counsel

can also be influential ... in making effective

arguments for the accused on such matters as

8

the necessity for an _ early psychiatric

examination or bail”).

e Providing notice. Preliminary hearings

provide an opportunity for the defense to

obtain notice of the scope and depth of the

prosecution’s evidence by cross-examining

witnesses presented by the prosecutor and by

subpoenaing other potential trial witnesses to

testify at the hearing. LaFave et al., supra

§ 14.1(a)-(d); see also Coleman, 399 U.S. at 9

(1970) (“trained counsel” at preliminary

hearing can “discover the case the State has

against his client and make possible the

preparation of a proper defense to meet that

case at the trial”).*

e Facilitating plea bargains. The preliminary

hearing may help the defendant—and

sometimes the prosecutor—appreciate the

relative strength of the evidence and thereby

guide the parties toward a plea bargain.

LaFave et al., supra, § 14.1(a)-(d).

e Providing a forum for threshold constitutional

challenges to evidence. In some—but not all—

jurisdictions, the preliminary hearing offers

* Some States’ criminal procedures assert that preliminary

hearings are not for discovery. See, e.g., D.C. Crim. P. R. 5.1.(d).

This underscores that defendants are entitled to discovery at a

later juncture, but it does not alter the practical reality—as

recognized by this Court in Coleman—that preliminary

hearings provide an opportunity for the defense to glean insight

into the prosecution's case.

9

the initial opportunity for the defense to

challenge the constitutional validity of

evidence. The preliminary hearing sometimes

offers sufficient advantages over a pretrial

motion to suppress that defense counsel will

insist upon a preliminary examination for this

purpose alone. /d.

SUMMARY OF ARGUMENT

This Self-Incrimination Clause of the Fifth

Amendment applies to preliminary hearings (and

analogous proceedings, whatever name they may be

assigned under various State law provisions) when

such proceedings are held after the initiation of

criminal charges. This conclusion follows from the

constitutional text, this Court’s precedents, and

consideration of how such proceedings function in

the context of criminal prosecutions.

A. The words of the Self-Incrimination Clause, as

construed by this Court, lead to this conclusion. The

Fifth Amendment guarantees that “no person ...

shall be compelled in any criminal case to be a

witness against himself.” U.S. Const. amend. V. This

Court has consistently recognized and affirmed the

vital function this guarantee plays in maintaining

the fair administration of justice.

1. The preliminary hearing is part of a “criminal

case” and therefore under the umbrella of the Self-

Incrimination Clause. The preliminary hearing

occurs after the filing of a criminal complaint. It

10

takes place in open court, with all parties having the

opportunity to be represented by counsel. And a

judicial officer presides. It is manifestly distinct from

the criminal investigatory process. Though this

Court has not pinpointed exactly when a “criminal

case” begins, it must be at or before the preliminary

hearing.

2. Prosecutorial use of a defendant’s involuntary,

self-incriminating statement at the preliminary

hearing violates the Self-Incrimination Clause

because it compels the defendant to be a “witness

against himself.” Not every criminal case has a

preliminary hearing, but cases that do cannot

proceed to trial or conviction unless the presiding

judicial officer finds probable cause. It follows that

prosecutorial use of a defendant’s involuntary, self-

incriminating statement to substantiate probable

cause is part and parcel of the criminal prosecution.

If the rule were otherwise, nothing would stop the

prosecutors from calling defendants to the stand in

every preliminary hearing to ask them whether they

committed the crime. Under the government’s

theory, so long as the answer was not used at trial, a

defendant could be compelled to testify against

himself at a preliminary hearing.

B. Limiting the Self-Incrimination Clause to a

trial right would deny criminal defendants a critical

constitutional protection where it is often most

important. A criminal defendant's compelled state-

ment alone will often satisfy the probable cause

standard at a preliminary hearing, even though that

statement could not be used against the defendant at

11

trial. Such use undermines the purposes of

preliminary hearings. It also pressures defendants to

plead guilty before trying to vindicate their

constitutional rights. Nearly all cases in our criminal

justice system end in pleas. It is unjust to require

defendants to swim against that systemic current

solely for an initial opportunity to test their

constitutional rights.

C. The United States’s policy arguments in

support of Petitioner do not withstand scrutiny.

Courts are equipped to adjudicate challenges to the

use of compelled, self-incriminatory statements at

the preliminary hearing stage. Arguments about

judicial efficiency and streamlined procedures do not

take precedence over constitutional commands. None

of the government's arguments compels a different

outcome here.

ARGUMENT

THE FIFTH AMENDMENT’S GUARANTEE

AGAINST SELF-INCRIMINATION APPLIES AT

PRELIMINARY HEARINGS.

A. This principle is consistent with the

Constitution’s text and with precedent.

The Fifth Amendment guarantees that “no person

.. Shal! be compelled in any criminal case to be a

witnes , against himself.” U.S. Const. amend. V. The

Self-Incrimination Clause is a critical bulwark

designed to deter coercion and ensure the impartial

administration of criminal justice. Malloy v. Hogan,

378 U.S. 1, 2-3 (1964). “This Court's decisions have

12

referred to the right as ‘the mainstay of our

adversary system of criminal justice.” Michigan v.

Tucker, 417 U.S. 433, 439 (1974) (quoting Johnson v.

New Jersey, 384 U.S. 719, 729 (1966)). Through this

provision, governments, both state and federal, are

required to establish guilt by evidence independently

and freely secured, and may not use compulsion to

prove a charge against an accused with his own

words. Malloy, 378 U.S. at 6. The privilege against

self-incrimination is an absolute right: even a

compelling governmental interest cannot justify its

infringement. And its protection is so critical that

this Court established a prophylactic rule—in

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

law enforcement to inform individuals in any

custodial interrogation of the right to remain silent.

1. The guarantee applies “in any criminal case.”

U.S. Const. amend. V. Petitioner is incorrect to

equate the Fifth Amendment's reference to a

“criminal case” with the narrower concept of a

“criminal trial.” Had the Framers meant to restrict

this protection only to trial proceedings, they could

have done so. Instead, the Self-Incrimination Clause

provides broader protection against the use of

compelled statements in “any criminal case.” The

court below extensively examined the term “criminal

case” and properly concluded that it encompasses

preliminary hearings like the one at issue in this

case. Pet’r App. 10a-19a.

Precedent confirms that a preliminary hearing is

part of a “criminal case” and therefore under the

umbrella of the Self-Incrimination Clause. This

13

Court has previously held that “criminal case” is a

general term for “an action, cause, suit, or

controversy at law” or “a question contested before a

court of justice.” Chavez v. Martinez, 538 U.S. 760,

766 (2003) (plurality) (citing Blyew v. United States,

13 Wall. 581, 595 (1872)). Although the Chavez Court

did not pinpoint “the precise moment when a

‘criminal case’ commences” for Fifth Amendment

purposes, it clearly did not limit the guarantee

against use of compelled statements to trial, stating

that “[a] criminal case’ at the very least requires the

initiation of criminal proceedings.” Jd. at 766.

It follows that an adversarial, evidentiary

proceeding held after a criminal complaint has been

filed by a prosecutor, designed for a judicial officer to

determine whether there is sufficient evidence

proceed to trial, is part of the criminal case at which

compelled self-incriminating statements may not be

used. See Resp’t Br. 15-16. Indeed, courts applying

Chavez have consistently held that the Self-

Incriminetion Clause is violated where compelled

statements are used by prosecutors before trial to aid

in the establishment of facts showing the defendant

committed a crime. See e.g., Sornerberger v. City of

Knoxville, 434 F.3d 1006, 1024-27 (7th Cir. 2006)

(use of a suspect's unwarned statements at an

arraignment hearing, probable cause hearing, and

bail hearing constituted use of the statements in a

"criminal case”); Stoot v. City of Everett, 582 F.3d

910, 924 (9th Cir. 2009) (use of coerced confession in

a probable cause affidavit filed in support of

indictment and at pretrial arraignment and bail

14

hearing constituted use in a “criminal case” in

violation of Fifth Amendment); see also, e.g., Higazy

v. Templeton, 505 F.3d 161, 179 (2d Cir. 2007) (use of

compelled statements at bail hearing sufficient to

state claim for Fifth Amendment violation); Best v.

City of Portland, 554 F.3d 698, 702 (7th Cir. 2009)

(use of compelled statements at pre-trial suppression

hearing sufficient to state claim for Fifth

Amendment violation). As these cases illustrate—

and as detailed on pages 15-18 of Respondent's

brief—the term “criminal case” within the meaning

of the Fifth Amendment must include the

preliminary hearing.

The conclusion that the Self-Incrimination

Clause’s protection against use of compelled

statements applies to preliminary hearings finds

additional support in this Court's Sixth Amendment

jurisprudence. Established law provides that the

term “criminal case” in the Fifth Amendment has at

least as broad a scope as the term “criminal

prosecution” does in the Sixth Amendment.

Counselman v. Hitchcock, 142 U.S. 547, 562-63

(1892), overruled on other grounds by Kastigar v.

United States, 406 US. 441 (1972). And in

interpreting the Sixth Amendment, this Court has

held that a “criminal prosecution” commences upon

“the initiation of adversary judicial criminal

proceedings—whether by way of formal charge,

preliminary hearing, indictment, information, or

arraignment.” Rothgery v. Gillespie Cty., 554 U.S.

191, 198 (2008) (emphasis added). If, as Rothgery

holds, a “criminal prosecution” includes a prelim-

15

inary hearing, such a hearing must also fall within

the term “criminal case” used in the Fifth

Amendment. See Counselman, 142 U.S. at 562-63.

Similarly, in Missouri v. Frye, the Court

recognized that plea bargaining is an essential

component of the criminal justice system that can

determine “who goes to jail and for how long.” 566

U.S. at 144 (citing Robert E. Scott & William J.

Stuntz, Plea Bargaining as Contract, 101 Yale L. J.

1909, 1912 (1992)). As such, the court deemed plea

bargaining a critical stage of the criminal

prosecution, during which the defendant is afforded

a constitutional right to effective assistance of

counsel. By the same logic, a preliminary hearing is

a critical stage of a criminal case. See Coleman, 399

U.S. at 7-10. Such a hearing—which often functions

as the defendant’s only day in court—plays a critical

part in determining whether the defendant “goes to

jail and for how long.” Frye, 556 U.S. at 144. As such,

there can be no doubt that preliminary hearings are

within the ambit of the Self-Incrimination Clause.

2. While the chronology and substance of

preliminary hearings establish that they fall

squarely within “a criminal case,” those are not the

only reasons the Self-Incrimination Clause applies.

Using a defendant's compelled testimony to establish

probable cause forces him to be “a witness against

himself’ in a hearing that is a necessary stepping

stone toward criminal conviction. Just as it would

violate the Fifth Amendment for the prosecutor to

call the defendant to the stand in a preliminary

hearing and compel him to answer whether he

16

committed the crime, so it violates the Fifth

Amendment to use statements he was compelled to

give elsewhere against him in that hearing.

When a preliminary hearing or preliminary

examination is held, the judicial officer’s finding of

probable cause is a necessary precondition for the

prosecution to proceed to criminal conviction. That

means that the preliminary hearing—assuming the

prosecution prevails at that hearing—moves the

defendant one step closer to conviction; and if the

prosecution does not prevail, the criminal case is

over. This fact renders untenable Petitioner's

argument that using an _ involuntary, _ self-

incriminating statement against the defendant at a

preliminary hearing does not “compel[]” the

defendant “to be a witness against himself.” U.S.

Const. amend. V.

A person qualifies as a “witness” when their own

“communication ... that relates either express or

implied assertions of fact or belief’ is used in court.

United States v. Hubbell, 530 U.S. 27, 35 (2000).

Because a preliminary hearing is an adversarial

proceeding before a judicial officer, when a criminal

defendant's _ self-incriminating statement is

presented at such a hearing, the defendant has been

made a witness. And because the purpose of the

preliminary hearing is to advance the government’s

prosecution of the defendant, such use makes the

defendant “a witness against himself under any

plausible definition of the term.” Resp’'t Br. 2

(quoting U.S. Const. amend. V).

17

In Petitioner's view, a defendant cannot be “a

witness against himself’ until and unless he is

compelled to testify—live or through introduction of

a compelled, self-incriminating statement—at his

criminal trial. See Pet’r Br. 6. This position defies

logic. Not every criminal prosecution requires a

preliminary hearing. But in every’ criminal

prosecution that has a preliminary hearing, the

prosecutor must prevail at that proceeding in order

to obtain a conviction. If the prosecutor fails to

demonstrate probable cause at the preliminary

hearing, the prosecution ends. The preliminary

hearing thus arises in the context of, and is a

necessary step in, the government’s effort to obtain a

conviction. It follows that to use a defendant’s

compelled statement against him in such a hearing

is part and parcel of the defendant's path to

conviction.

Petitioner dodges this axiomatic conclusion by

analogizing to grand jury proceedings. Pet’r Br. 19-

21. But the analogy fails precisely because the grand

jury is not an adversarial proceeding before a judicial

officer after criminal charges have been initiated. To

be sure, the Constitution does not require States to

provide preliminary hearings instead of grand jury

proceedings, but once a State chooses to initiate

criminal charges by complaint such that the

prosecutor must prove probable cause at a

preliminary hearing, the Self-Incrimination Clause

applies.

18

B. Limiting the Self-Incrimination Clause’s

application to the criminal trial itself

would severely prejudice defendants.

Preliminary hearings do not require proof beyond

a reasonable doubt, but only probable cause.

Comparatively, the burden of proof to require a trial

after such a hearing is low. LaFave et al., supra,

§ 14.3(a). This fact exacerbates the danger of

permitting a defendant's compelled statements to be

used against him in a preliminary hearing. A

prosecutor will often be able to prove probable cause

solely on the basis of a compelled statement made by

the defendant. See, e.g., Rayyis v. Super. Ct., 35 Cal.

Rptr. 3d 12, 23 (Cal. Ct. App. 2005); People v.

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

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

Were this Court to conclude that the Self-

Incrimination Clause does not bar use of a compelled

statement at a preliminary hearing, criminal

defendants would suffer severe prejudice.

1. Preliminary hearings use a probable cause

standard, which is a low burden of proof. This

standard generally requires a judicial officer to

determine that “there is probable cause to believe an

offense has been committed and the defendant

committed it.” State v. Carlson, 845 N.W.2d 827, 832

(Minn. Ct. App. 2014) (quoting Minn. R. Crim. P.

3.02); Sheriff v. Witzenberg, 145 P.3d 1002, 1009

(Nev. 2006); State v. Clark, 825 A.2d 803, 804 (Vt.

2003). Exactly what “probable cause” means has

often been left to judicial interpretation. Some courts

define probable cause in this context as

19

“substantially less proof than beyond a reasonable

doubt.” LaFave et al., supra, § 14.3(a); accord, e.g.,

State v. Haukos, 847 N.W.2d 270, 279 (Minn. Ct.

App. 2014); State v. Lownes, 499 N.W.2d 896, 898-99

(S.D. 1993). Others define it as “only some evidence

from which a reasonable person could infer the

presence of that element.” LaFave et al., supra,

§ 14.3(a); accord, e.g., State v. McLellan, 294 P.3d

203, 204-05 (Idaho 2013); Witzenberg, 145 P.3d at

1004 n.6; People v. McBride, 516 N.W.2d 148, 150

(Mich. Ct. App. 1994). Still others borrow the

probable cause standard for arrest, requiring

“evidence that is sufficient to induce a person of

ordinary prudence and caution to entertain a

reasonable belief that the defendant committed the

crime charged.” LaFave et al., supra, § 14.3(a);

accord, e.g., People v. Dist. Court, 17th Judicial Dist.,

926 P.2d 567, 570 (Colo. 1996); State v. Bockert, 893

P.2d 832, 835 (Kan. 1995); Jn re Keijam T., 602 A.2d

967, 970-971 (Conn. 1992). In most cases, a self-

incriminating statement can, on its own, satisfy any

of the three defined standards and allow the felony

charge to proceed.

Allowing the prosecutor to proceed to trial based

on a defendant's self-incriminating statement—

without adjudication arguments’ that the

Constitution prevents the statement from being

considered as evidence against the defendant—

undermines the screening purpose of preliminary

hearings. It could result in trials for cases that lack

sufficient admissible evidence. Allowing such cases

to proceed beyond the preliminary hearing is both

20

inefficient and unjust. But it is particularly

frightening when considered in concert with the fact

that nearly all cases end with pleas. Because for

many defendants the preliminary hearing is the apex

of their case—an adversarial hearing before a

judicial officer responsible for safeguarding their

rights and upholding the law—it is particularly

important that constitutional rights, including the

Self-Incrimination Clause, apply at that hearing.

Any time a prosecutor relies on a defendant's

involuntary statement to show probable cause at a

preliminary hearing, the defendant’s constitutional

rights have been violated. Even worse is where a

defendant pleads guilty before having an opportunity

to challenge the admissibility of the statement.

Postponing consideration of challenges under the

Self-Incrimination Clause until trial therefore harms

defendants and distorts the criminal justice system

by undermining the screening function that is the

raison détre of the preliminary hearing. Allowing a

felony charge to proceed to trial based on use of a

defendant's statement—without full and fair

consideration of the constitutionality of such use

under the circumstances specific to that statement—

could lead to a guilty plea even if the prosecutor

lacks sufficient admissible evidence by which to

prove guilt beyond a reasonable doubt. It is no

answer to say that a challenge to the voluntariness

of the defendant's statement can be raised later in

the criminal process through a motion to suppress,

because for many defendants, that will be too late.

While many factors contribute to a guilty plea, a

21

judicial officer's initial finding of probable cause

sufficient to hold a defendant for trial cannot be

dismissed. Indeed, some States prohibit any plea

until after the conclusion of the preliminary hearing.

See e.g., Wis. Stat. § 970.03(3) (2015-16). The judicial

imprimatur provided by a probable cause determi-

nation at the preliminary hearing, while based on a

lower standard of proof than needed for conviction,

may suggest to a defendant that the prosecution is

on its way to prevailing at trial.

A guilty plea elicited after a probable cause

determination that was itself based on evidence

inadmissible at trial because it violates the

defendant's constitutional rights is contrary to the

purposes of the Fifth Amendment. This Court has

based several applications of the Self-Incrimination

Clause on the precept that “an inability to protect

the right at one stage of a proceeding may make its

invocation useless at a later stage.” Tucker, 417 U.S.

at 440-41. So, too, here. Were the Court to hold that

self-incrimination challenges must be deferred until

after the preliminary hearing, it would be forcing

defendants to make a Hobson’s choice: wait until

they are able to challenge the constitutionality of

their self-incriminating statement (without any

guarantee of success),° or accept a plea deal now,

5 “(T]he vast majority of motions to suppress are denied.

Many of those denials, however, are likely not a direct reflection

of the merits of the defendants’ claims.” Michael D. Pepson &

John N. Sharifi, Lego v. Twomey: The Improbable Relationship

Between an Obscure Supreme Court Decision and Wrongful

(continued)

22

while it is extended. Such a dilemma lays bare the

fundamental unfairness of allowing a defendant's

self-incriminating statement to be used at a

preliminary hearing without also allowing a

constitutional challenge to that use, and it

undermines the sound policy rationale that has led

some States to require the prosecution to make a

showing of probable cause before accepting a guilty

plea.

Deferring self-incrimination challenges until trial

would also undermine the additional purposes that

preliminary hearings serve in practice. Allowing

prosecutors to rely on a defendant's involuntary

statement limits the quantum of other evidence that

the prosecutor must present to obtain a probable

cause determination. It therefore shortchanges the

defendant's ability to use the preliminary hearing to

assess the strength of the prosecution’s case. See

Coleman, 399 U.S. 9. Because reliance on the

defendant's statement allows the prosecutor to hold

back more of the evidence and witnesses that might

be used at trial, the preliminary hearing is not useful

as a means to lay groundwork for impeachment, to

preserve evidence, or even to facilitate informed plea

negotiations. See id. at 9. And, because the use of a

defendant's statement at the preliminary hearing

Convictions, 47 Am. Crim. L. Rev. 1185, 1192 & n.37 (Summer

2010) ; ef. United States v. Bennett, 514 A.2d 414, 417 (D.C.

1986) (Mack, J., dissenting) (“Without reference to statistics, |

believe I can say with some degree of confidence, that the vast

majority of motions to suppress evidence are denied by the trial

courts.”).

23

allows the prosecutor to shield other evidence not

only from the defendant but also from the court, this

practice limits the preliminary hearing’s possibility

of providing further data points that would allow the

court—sua sponte or at the defendant’s urging—to

revisit prior determinations regarding bail or

conditions imposed upon pretrial release. See id. at 9.

2. Allowing a charge to proceed on the basis of a

defendant's compelled statement also _ creates

systemic harms. Because double jeopardy does not

attach until a jury is impaneled, LaFave et al.,

supra, § 25.1(d), a prosecutor has little incentive not

to rely upon a defendant’s compelled statement for as

much of the pretrial criminal process as the courts

will allow. As earlier noted, doing so might influence

the defendant to accept a guilty plea. And, even if the

defendant refuses to plead guilty and the statement

is subsequently suppressed, the prosecutor can have

another bite at the apple. If necessary, the

prosecutor can dismiss the case, request additional

investigation, and refile the charges based on any

new evidence uncovered. To maintain the integrity of

the criminal justice system, the Court must

recognize a defendant's constitutional right against a

prosecutor using a compelled statement at a

preliminary hearing. Refusing to allow preliminary

hearings to proceed on statements that violate the

Self-Incrimination Clause would discourage

prosecutors from bringing felony charges that they

might not be able to prove at trial.

24

C. The government’s policy concerns do not

withstand scrutiny.

The United States, participating as amicus, offers

a number of doomsday predictions about harms that

will allegedly follow from prohibiting the use of

compelled, self-incriminating statements at prelim-

inary hearings. As an initial matter, the govern-

ment’s dire predictions for the criminal justice

system ignore reality. The Self-Incrimination Clause

already applies at preliminary hearings as a matter

of settled law in the Second, Seventh, and Ninth

Circuits. See Stoot, 582 F.3d at 924; Best, 554 F.3d at

1257; Higazy, 505 F.3d at 179. The government cites

no evidence that any of the policy concerns it raises

have disrupted criminal justice in these Circuits—or

in the Tenth Circuit since it issued the decision

below. Nor can the government’s concerns, consid-

ered on their own merits, withstand scrutiny.

First, the United States argues that determining

the admissibility of a compelled statement will

burden the courts when preliminary hearings are

intended to be informal, expeditious, and focused on

preliminary issues such as bail and probable cause

“unrelated to guilt or punishment.” U.S. Br. 26. Not

so. The primary purpose of a preliminary hearing is

to determine whether the prosecution has sufficient

evidence for the criminal case to proceed to trial.

This screening function means that the preliminary

hearing is inextricably related to the process of

determining whether the defendant is guilty; it is the

defendant’s first opportunity to establish that the

prosec ation cannot meet its burden and therefore

25

have the case dismissed. Moreover, as discussed

above, the preliminary hearing serves other

functions as well, which are also disrupted when

probable cause is found on the basis of a defendant's

involuntary statement.

Second, the United States improperly privileges

judicial efficiency over a defendant's constitutional

rights. U.S. Br. 26-27. This Court has held that the

goal of streamlining prosecutions cannot trump

individual rights. See Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 325 (2009) (“The

Confrontation Clause may make the prosecution of

criminals more burdensome, but that is equally true

of the right to trial by jury and the privilege against

self-incrimination. The Confrontation Clause—like

those other constitutional provisions—is binding,

and we may not disregard it at our convenience.”).

That constitutional rights take precedence over

judicial efficiency is a bedrock principle of our justice

system. “The imperative to safeguard individuals

from compelled self-incrimination ‘transcends any

difficulties that the exercise of the privilege may

impose on society in the detection and prosecution of

crime.’ United States v. White, 322 U.S. 694, 698

(1944).” Resp’t Br. 49.

The same principle disposes of the observation

that federal magistrate judges lack authority to

suppress evidence in a pre-indictment preliminary

examination. U.S. Br. 29. This fact does not

illuminate the constitutional issue at stake. To the

extent that the Fifth Amendment determination

disrupts existing criminal procedures (as_ the

26

government fears), fidelity to the constitutional

guarantee necessitates a procedural change.

Third, the United States argues that questions

over the admissibility of a defendant's statement are

too difficult to decide at a preliminary hearing. U.S.

Br. 27-28. Specifically, the government worries that

legal determinations regarding whether a

defendant's statement was compelled are complex.

U.S. Br. 27. But there is no reason to fear that a

court could not effectively resolve suppression issues

in the context of a preliminary hearing. Indeed,

courts already adjudicate Fifth Amendment issues at

preliminary stages. For example, so-called Kastigar

hearings may be held before trial to review the

sources of evidence used to prosecute a previously

immunized witness. See eg., United States v.

Frumento, 552 F.2d 534, 542 n.14 (3d Cir. 1977). In

weighing probable cause at such a hearing, the court

cannot consider compelled statements. Moreover,

Kastigar hearings show that courts can and do delve

into issues raised by compelled statements early in

criminal proceedings. Similarly, as noted above,

several Circuits have adopted a rule allowing self-

incrimination challenges at preliminary hearings,

without ill effect. Affirming the ruling below will not

impose a unique or undue burden.

Fourth, the United States’s argument that

probable cause hearings happen too soon after a

criminal case has been filed for the guarantee

against self-incrimination to apply also fails. U.S. Br.

30. It cannot be too soon for the prosecutor, who

decides when to file felony charges and is expected

27

not to do so until ascertaining that the government

has sufficient admissible evidence to prove guilt

beyond a reasonable doubt at trial. Nor can it be too

soon for the criminal defendant whose rights the

Self-Incrimination Clause safeguards. No one has

suggested—and the government surely does not

mean to argue—that a defendant who lacks

sufficient information at a preliminary hearing to

challenge a compelled self-incriminating statement is

thus foreclosed from seeking to suppress the

statement prior to its anticipated use at trial. Such a

theory would undermine “[t]he essence” of the Self-

Incrimination Clause’s “requirement that the State

which proposes to convict and punish an individual

produce the evidence against him by the independent

labor of its officers, not by the simple, cruel

expedient of forcing it from his own lips.” Mitchell v.

United States, 526 U.S. 314, 326 (1999) (emphasis

and internal quotation marks omitted).

Fifth, the United States engages in tautology

when it argues that applying the Self-Incrimination

Clause to pretrial proceedings has no logical end

point. U.S. Br. 30. The government seems to suggest

that a defendant’s introduction of a statement for the

narrow purpose of challenging the constitutionality

of the prosecution using the statement as evidence

would in and of itself compel the defendant to be a

witness against himself. Chavez's determination that

violation of the right against self-incrimination, at a

minimum, requires “the initiation of legal

proceedings” as well as the “use” of statements in

those proceedings defeats this argument. Chavez,

28

538 U.S. at 766-77. So does logic. Of course a

defendant does not concede the admissibility of an

involuntary statement by placing it before court

solely to raise a constitutional challenge to its

admissibility against him. Courts have experience

fencing off admissibility determinations from

weighing the merits of the case. The United States

makes no showing that this circumstance would be

any different.

Additionally, as noted above and by Respondent,

the government's position carries a_ chilling

implication. By the United States’s logic, the Fifth

Amendment would not prevent a prosecutor from

compelling a defendant to take the witness stand and

forcing him to testify against himself at a

preliminary hearing, as long as the testimony would

not be used at trial. Such a scenario is inimical to the

absolute protections this Court has long understood

the Self-Incrimination Clause to confer. See, e.¢.,

Malloy, 378 U.S. at 7-8; Mitchell, 526 U.S. at 326. A

ruling that countenances such a practice would be a

substantial and deleterious change in constitutional

doctrine.

29

CONCLUSION

The judgment of the court of appeals should be

affirmed.

Respectfully submitted,

Barbara E. Bergman Jeffrey A. Mandell

NATIONAL ASSOCIATION Counsel of Record

OF CRIMINAL DEFENSE Laura E. Callan

LAWYERS Erika L. Bierma

1660 L Street, N.W. Eileen M. Kelley

Washington, D.C. 20036 Elizabeth C. Stephens

STAFFORD ROSENBAUM LLP

David D. Cole 222 W. Washington Ave.

Rachei Wainer Apter Suite 900

Ezekiel Edwards Madison, WI 53703

AMERICAN CIVIL (608) 256-0226

LIBERTIES UNION jmandell@staffordlaw.com

FOUNDATION

915 15th Street, N.W.

Washington, D.C. 20005

December 20, 2017 Counsel for Amici Curiae