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09/14/2017

Tenth Circuit Originalism: Vogt v. City of Hays
Michael Ramsey

My colleague Donald Dripps points to this recent opinion from the Tenth Circuit, now on petition to the Supreme Court: Vogt v. City of Hays.  The issue is whether the 5th Amendment self-incrimination clause is violated when a statement is used at a
probable cause hearing rather than at a trial.   The court  (in an opinion by Judge Bacharach, joined by Judges Hartz and McHugh) said yes, with a heavily originalist analysis -- I quote at some length to give a sense of the originalist emphasis (footnotes and some citations omitted).

After finding no controlling precedent, the court begins with original meaning analysis:

[We conclude] that the right against self-incrimination is more than a trial right. In reaching this conclusion, we rely on

  • the text of the Fifth Amendment, which we interpret in light of the common understanding of the phrase “criminal case,” and
  • the Framers’ understanding of the right against self incrimination.

The Fifth Amendment provides that no person shall be “compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V (emphasis added). The text of the Fifth Amendment does not contain

  • the term “trial,” which appears in the next two amendments, or
  • the term “criminal prosecution,” which is used in the next amendment.

… Indeed, on its face, the term “criminal case” appears to encompass all of the proceedings involved in a “criminal prosecution.”

“The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning . . . .” United States v. Sprague, 282 U.S. 716, 731 (1931). To determine the commonly understood meaning of the phrase “criminal case” at the time of ratification (1791), we examine dictionary definitions from the Founding era. See Gregory E. Maggs, A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution, 82 Geo. Wash. L. Rev. 358, 365 (2014); see also William M. Carter, Jr., Race, Rights, and the Thirteenth Amendment: Defining the Badges and Incidents of Slavery, 40 U.C. Davis L. Rev. 1311, 1338 n.99 (2007) (stating that contemporaneous dictionaries “obviously . . . provide some guidance to the commonly understood meaning of a particular word at the time that word was used in the constitutional text”).

The most authoritative dictionary of that era was Noah Webster’s 1828 dictionary, An American Dictionary of the English Language. See John A. Sterling, Above the Law: Evolution of Executive Orders (Part One), 31 UWLA L. Rev. 99, 107 (2000) (stating that most historians use Noah Webster’s 1828 dictionary when trying to determine the meaning of words during adoption of the Constitution); see also Charles Wood, Losing Control of America’s Future—The Census, Birthright Citizenship, and Illegal Aliens, 22 Harv. J.L. & Pub. Pol’y 465, 478 (1999) (stating that Noah Webster’s 1828 dictionary was “the first and for many years the 16 authoritative American dictionary”); Steven G. Calabresi & Andrea Matthews, Originalism and Loving v. Virginia, 2012 B.Y.U. L. Rev. 1393, 1425 (2012) (describing Noah Webster’s 1828 dictionary as “an incredible achievement” and as a “dominant” source since its publication); Gregory E. Maggs, A Concise Guide to Using Dictionaries from the Founding Era to Determine the Original Meaning of the Constitution, 82 Geo. Wash. L. Rev. 358, 389-90 (2014) (stating that the Supreme Court often cites Noah Webster’s 1828 dictionary as evidence of the original meaning of the Constitution, perhaps based on a belief “that the dictionary may reflect better the ways in which Americans used and understood the words in the Constitution”). Webster’s 1828 dictionary defines “case” as “[a] cause or suit in court,” stating that the term “is nearly synonymous with cause.” Noah Webster, Case, An American Dictionary of the English Language (1st ed. 1828). And the dictionary defines the “nearly synonymous” term “cause” as “[a] suit or action in court.” Id., Cause. Similarly, N. Bailey’s 1789 dictionary broadly defines “case” as a “thing, matter, question.” N. Bailey, The Universal Etymological English Dictionary, Case (26th ed. 1789).

The Founders’ understanding of the term “case” suggests that the Fifth Amendment encompasses more than the trial itself. See Donald Dripps, Akhil Amar on Criminal Procedure and Constitutional Law: “Here I Go Down that Wrong Road Again,” 74 N.C. L. Rev. 1559, 1627 (1996). “If the Framers had meant to restrict the right to ‘trial,’ they could have said so.” Thomas Y. Davies, Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right Against Self-Incrimination as a “Trial Right” in Chavez v. Martinez, 70 Tenn. L. Rev. 987, 1014 (2003). ...

Then the court looks to history for further support:

We are aided not only by Founding-era dictionary definitions and [Supreme Court decisions] but also by the Framers’ understanding of the phrase “in any criminal case.” … 

One clue involves the changes in the Fifth Amendment from drafting to ratification. The amendment had been drafted by James Madison, who omitted the phrase “criminal case”:

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 compelled 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 just compensation.

James Madison, Remarks in Debate in the House of Representatives (June 8, 1789) (emphasis added), reprinted in 1 Debates and Proceedings in the Congress of the United States 448, 451-52 (Joseph Gales ed., 1834); United States Congress, Debates and Proceedings in the Congress of the United States 451-52 (Washington, D.C. 1834). This language “applied to civil as well as criminal proceedings and in principle to any stage of a legal inquiry, from the moment of arrest in a criminal case, to the swearing of a deposition in a civil one.” Leonard W. Levy, Origins of the Fifth Amendment 423 (1968).

In the floor debate on whether to adopt the Bill of Rights, Representative Laurance expressed concern that Madison’s wording would conflict with “laws passed.” Statement of Representative John Laurance (Aug. 17, 1789), reprinted in 1 Debates and Proceedings in the Congress of the United States 782, 782. To avoid this conflict, Representative Laurance proposed to add the phrase “in any criminal case.” Id. Representative Laurance’s language was accepted in the House and Senate. Leonard W. Levy, Origins of the Fifth Amendment 424-26 (1968).

It is unclear which “laws” Representative Laurance was talking about. One possibility was the proposed Judiciary Act, which would allow the judiciary to compel production of documents in civil cases. Another possibility was the Collections Act, which allowed officials to require oaths in customs declarations. Act of July 31, 1789, ch. 5 section 13, 1 Stat. 29, 39-40; see Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 705 n.450 (1999). But whichever law was at risk, Representative Laurance was apparently trying to distinguish between potential criminal liability and civil liability. See Thomas Y. Davies, Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right Against Self-Incrimination as a “Trial Right” in Chavez v. Martinez, 70 Tenn. L. Rev. 987, 1017 (2003) ...

When Representative Laurance proposed to confine the Fifth Amendment to a “criminal case,” there was a consensus that the right against self-incrimination was not limited to a suspect’s own trial. To the contrary, “the historical sources show that the right against selfaccusation was understood to arise primarily in pretrial or preprosecution settings rather than in the context of a person’s own criminal trial.” Id. at 1017-18. If this right were limited to one’s own trial, the right would have served little purpose, for criminal defendants were then unable to testify in their own criminal cases. See Ferguson v. Georgia, 365 U.S. 570, 574 (1961) (stating that when the United States was formed, “criminal defendants were deemed incompetent as witnesses”).

The most natural place for concern about compelled testimony would have been in proceedings outside of criminal trials, such as grand jury proceedings. See David Rossman, Conditional Rules in Criminal Procedure: Alice in Wonderland Meets the Constitution, 26 Ga. St. U.L. Rev. 417, 488 (2010).

After adopting Representative Laurance’s language, the Senate reorganized the cluster of rights that ultimately went into the Fifth and Sixth Amendments. “In what was to be the Sixth Amendment the Senate clustered together the procedural rights of the criminally accused after indictment.” Leonard W. Levy, Origins of the Fifth Amendment 427 (1968); see also Thomas Y. Davies, Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right Against Self-Incrimination as a “Trial Right” in Chavez v. Martinez, 70 Tenn. L. Rev. 987, 1013 (2003) (“[T]he Sixth Amendment plainly deals with rights that protect ‘the accused’ during the court phase of prosecutions, including trials.”). This grouping of Sixth Amendment rights omitted the right against self-incrimination, which was put into the Fifth Amendment with other rights that unambiguously extended to pretrial proceedings as well as the trial:

That the self-incrimination clause did not fall into the Sixth Amendment indicated that the Senate, like the House, did not intend to follow the implication of 23 [Section 8 of the 1776 Virginia Declaration of Rights] . . . that the right not to give evidence against oneself applied merely to the defendant on trial. The Sixth Amendment, referring explicitly to the accused, protected him alone. Indeed the Sixth Amendment, with the right of counsel added, was the equivalent of Virginia’s Section 8 and included all of its rights except that against selfincrimination. Thus, the location of the self-incrimination clause in the Fifth Amendment rather than the Sixth proves that the Senate, like the House, did not intend to restrict that clause to the criminal defendant only nor only to his trial. The Fifth Amendment, even with the self-incrimination clause restricted to criminal cases, still puts its principles broadly enough to apply to witnesses and to any phase of the proceedings.

Leonard W. Levy, Origins of the Fifth Amendment 427 (1968); see also Thomas Y. Davies, Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right Against Self-Incrimination as a “Trial Right” in Chavez v. Martinez, 70 Tenn. L. Rev. 987, 1009-13 (2003) (“[T]he right against compelled selfaccusation is in the wrong amendment to be a ‘trial right.’”); Michael J. Zydney Mannheimer, Ripeness of Self-Incrimination 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[]’ commences.” (alteration in original)).

In sum, there is nothing to suggest that the Framers were seeking to confine the right against self-incrimination to trial. The Founders apparently viewed the right more broadly, envisioning it to apply beyond the trial itself.

Three very quick thoughts:  (1)  Originalism is at least part of the mainstream of our law, not a radical outlier; (2) note the extent to which the court looks to academic studies for support -- academic originalism need not be impractical; and (3) for originalism critics who think originalism is impossible or can be performed only by historians, this seems like a good target: what's wrong with it?  (Not my area, so I have no opinion on the outcome, but the originalist methodology seems plausible on its face).

(Thanks again to Donald Dripps for the pointer).