Justices on Thursday agreed to hear the latest case brought by the University of Virginia School of Law Supreme Court Litigation Clinic, City of Hays v. Vogt, which seeks to better define when and under what circumstances Fifth Amendment rights apply.

The Fifth Amendment’s self-incrimination clause provides that no one “shall be compelled in any criminal case to be a witness against himself.” But what happens when an allegedly compelled statement is used in a probable-cause hearing, but never introduced in a criminal trial?

The clinic is representing the city of Hays, Kansas, which is being sued by one of its former police officers, Matthew Vogt. He claims that, as part of an internal investigation, he was required to provide information about how he came into possession of a knife while on duty — or risk being fired. The officer felt compelled to explain and was later charged in a criminal offense.

Although there was never a trial and the charges were ultimately dismissed, Vogt applied for a police job in another city and was denied employment.

The officer then sued Hays, claiming his statements were used against him in violation of his Fifth Amendment rights. The trial court ruled in favor of the city, but the Tenth Circuit ruled in favor of the officer. The Supreme Court agreed to hear the case because the courts of appeals had split on the issue.

Professor Toby Heytens, the clinic instructor coordinating the case, said the clinic became involved in the cert stage of the litigation. (The case follows Chavez v. Martinez, which was pending before the Supreme Court the year he clerked for Justice Ruth Bader Ginsburg.)

“The case presents an interesting and difficult question on which the court has never directly ruled,” Heytens said. “Is the self-incrimination clause fundamentally a trial right or is it directly applicable to other sorts of proceedings as well?”

He said the case will likely be argued in January. Justice Neil Gorsuch has recused himself, most likely due to his previous related work in the Tenth Circuit, Heytens said.

The Supreme Court Litigation Clinic has been preparing cases for the court for more than a decade. The yearlong clinic introduces third-year law students to all aspects of current U.S. Supreme Court practice through live cases, which they help prepare. 

City of Hays v. Vogt follows Epic Systems Inc. v. Lewis, which Professor Dan Ortiz, the clinic’s director, will argue on Monday.

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