well your argument next in case sixteen fourteen ninety five the city of hayes versus revote for heightens mr chief justice and may please the court the decision below should be reversed for two independent reasons reason number one because the only setting in which a person can be made to be a witness against himself for purposes of the fifth amendment is during a proceeding where that person's guilt or punishment are to be adjudicated that is at trial and second because regardless of whether it is possible that some types of fifth amendment violations could ever occur before trial the court should reject any such notion with regard to the specific type of fifth amendment violation alleged here which is incrimination clause can only be violated during a proceeding where the person who statements are at issue is being used to adjudicate that person's guilt or punishment for purposes of criminal liability that's the first it's nice to be at trial so in making that  cases i don't think that's that's right justice ginsburg and i think the reason for that is that it's critical to distinguish between two issues the first issue is when can the privilege against self incrimination be invoked and the second is when the self incriminati clause can actually be can actually be violated so let me give you an example under this court's decision in chavez if chavez holds nothing else i understand chavez to hold this nothing that happens inside a police interrogation room can itself constitute a completed violation of the fifth amendment but that is not to say of course that if his officer is interrogating me i cannot say i decline to answer your questions on the grounds that may incriminate me so i think it's very important to distinguish between the question of when the privilege can asserted i can assert the privilege in a civil case i can assert the privilege in a police interrogation room i can assert the privilege at someone else's criminal trial and nothing that we're asking the court to do is inconsistent with any of that moment tonight named in this defendant based on what you just said could refuse to answer that question it had been put to him at a probable cause hearing that tell us about that episode when you say you need chain then he could say i won't  introduction of a prior compound i understand the the apparent anomaly justice ginsburg i think the reason though for it is the reason that he can assert the privilege against self incrimination out the probable cause hearing is the same reason that he could have started in the police interrogation room it is the risk that if he gives a statement in that setting it could later be used against him at a trial and guilt or a trial on the merits and that's the reason that he could assert the privilege at the probable cause hearing but it is not because that anything that happens jury proceeding later but that's different so somebody finds a way he gets an order from a judge he says i don't want these pieces of paper introduced they were taken from the violation of my fifth amendment right not to be a witness and i don't want them brought before the grand jury i'm brother surprise that that's never come up well will justice prior i think it has come up and i think that point and where then where the cases that say the even though the person objected you can introduce it to the grand jury i can't find any and i have found cases it's a grand jury is a criminal proceeding right we certainly understand the grant this court's decision and councilman to say that the grand jury is part of the criminal case for purposes of the fifth amendment and we think that's very significant because justice breyer i agree that i'm not aware of any case where the defendant tries to stop the information from being presented to the grand jury what i am aware of is a numerous statements by this court that says that a defendant may not attack an indictment by claiming that the grand jury considered statements obtained in violation of the fifth amendment by my count the court has said that at least three times mr hyde and you also agree now don't you that the probable cause here in this part of the criminal case that's not at issue here we agree with that yes ok so then case to be a witness against himself to be a witness against himself if i'm just thinking about the natural reading of those terms it's when my testimony is introduced adverse to my interests in that criminal case so why isn't that just we what we should be asking i understand that if you are looking simply at the language that is a more than plausible interpretation but i don't think that's kind of the obvious interpretation but i think it would be inconsistent with a number of things that this court has already said and i think it would be inconsistent with some of the concessions that i understand our friends on the other side to have made let me give you one very very clear example i think a gerstein hearing is also pretty clearly part of a criminal case and i understand the red brief to all but acknowledge that the rule that they're advocating doesn't apply to garcia here in this court in the style i think a competency hearing is clearly part of a criminal case but this court said in a style well i don't think it still is inconsistent with that because what the court in the stone said was that this is actually a neutral determination and that's understandable when you consider that the the  victory you win when you're declared incompetent is to continue to be detained as incompetent so it's it's not like here where it's like well obviously obviously i want to win this so that i can get out of this criminal sure well i guess two responses to that justice kagan i think everything you just said also would apply to a grand jury context in the court has repeatedly said you can't attack an indictment yes i mean you're quite right that there is a if you are right that the grand jury is different and you might be that there is a kind of anomaly there but explained i think by kind of his star at judgment that grand juries are sacrosanct that everything has to be secret that we don't want people poking around in that black box and none of that is true of just standard probable cause hearings we agree with that justice kagan but i think the anomaly actually goes deeper than that for it for two reasons one is that under kansas law under kansas law this probable cause hearing is an express statutory substitute for proceeding by grand jury and so we think it would be a little bit strange to say that you have rights at the substitute proceeding that you only have by virtue of state law i'm sorry how is it be it's an imperfect substitute well i agree i agree that the procedures aren't the same certainly justice sotomayor i don't do stand the procedures are different i'm not sure what any of that though has to do with whether this is a criminal case and whether i'm being made to be a witness against myself for purposes of the self incrimination clause but i think there's an even bigger problem which is the anomaly is actually not a two part anomaly it's a three part anomaly because as i read this court's decisions and her tato and bursting in the state of kansas could choose option number three option number three being no grand jury no probable cause hearing the prosecution goes forward based on nothing but the prosecutor's determination that there is probable cause and there is no suggestion that it would violate the self incrimination clause for the prosecutor sitting in her office to consider these statements so we're in a situation here where so far as the federal constitution is concerned kansas has three choices a grand jury a probable cause hearing or neither and it appears clear to me that in option one and option three the right that our friends on the other side are asserting would not apply and so it would seem anomalous that you have rights in option two that you don't have an option one or option three but even if the grand jury analogy isn't persuasive to all members of the court i think there's another analogy that is extremely damaging which is the analogy because as i read this court's decision in gerstein the legal question that is decided at a gerstein hearing whether there is probable cause to believe that the accused committed the crime is legally indistinguishable from the question at kansas is probable cause hearing so i'm not sure what the basis on that ground would be for saying that this right applies at the probable cause hearing but doesn't apply at the gerstein hearing and i don't think it's plausible to say that it applies at the gerstein hearing for all the reasons that the kansas amicus brief gives because it's simply not going to be practically possible to have this right at a gerstein hearing which is a non adversarial proceeding there is no right to counsel and which has to be held within forty eight hours of arrest and detention i don't back to my first question i don't know what the answer is in the grand jury proceeding i do know you can't attack that proceeding in trial but i don't know whether as in this case somebody might if they were used bring a nine hundred eighty three claim on the ground that his constitutional rights have been by later that's what happened here and i don't know what would happen if because of the circumstance of the defendant went before a judge and said judge keep that piece of paper out of the grand jury proceed just prior i do think perhaps they should be treated alike but i don't know what a like is well justice for i think all the reasons that the court has said that you can't collaterally attack an indictment court gave in its most recent decision on the grant the collateral attack on the grand jury the court said well if you had a right to challenge the evidence that was introduced before you but before against to a grand jury you have a right to discovery you have a right to try to find out what was happening know we have a instance where there is a committee investigating mr smith and mr smith takes the fifth amendment ninety three ninety four times and then they compel him to give all kinds of statements and then there is a grand jury and he goes to the judge and says judge keep those statements out i understand what mr smith might want to know but i understand that he says they were taken in violation of my fifth amendment right and there we are  keep him out keep him out of the grand jury and you're telling me there is so this is an important case in more ways than one because what we decided here i guess would decide the same thing for the grand jury will justice for i'd say two things on that first and foremost if he believes that his statements were used in that way i think it's useful to take a step back and realize nothing that we are saying is to suggest that mr smith in justice briar's example would not be entitled to file a motion to suppress each and every one of those statements at his criminal trial and if that motion prevailed he would very likely get a dismissal on the charges because if it was actually true that the government's evidence was almost all derived from his own compelled statements the granting of the motion to suppress before trial would effectively end the criminal proceeding in his favor so it's not as if where else in the same thing is true here if officer vote was correct that the statements that were used were obtained and then used in violation of were obtained in violation of garrity and if this case had gotten past the probable cause hearing i assume and expect that officer votes lawyer would have filed a motion to suppress all of those statements at trial and if his garrity claim was meritorious i think we need to assume that that motion would have been granted and if that motion is granted and if all of the evidence was in fact or match of the evidence was derived from those statements i assume that the criminal proceeding would have ended in his favor so we're not putting defendants in a position where they don't have an opportunity  say based on the you seen the record and based on my review of the transcript i do not it's not and it's not in the record but i understand my understanding from the hearing is that he did not file such a motion and wouldn't a ruling by house against you just mean that defendants whether it's within forty eight hours of hearings being held or a probable cause hearing accent or wouldn't we be putting the onus on defendants to raise a valid objection if they have one then mire i would certainly say if the court were to rule against us i would urge that you make clear that any such right requires a timely objection well that's a matter of law if you don't object to the admission of the statement that objection if that's certainly generally true justice out of my are you going are you familiar with any cases i don't know what the states say about this but in federal law that allow a person who thinks that he or she may be under investigation by a grand jury to go to a federal judge and file a motion in limine regarding the evidence that may be presented to the grand jury i am not just a little this would be revolutionary well that i would agree with that justice occur in a pretrial probable cause hearing where the defendant's guilt and punishment are not on the line and the only question is whether he'll be bound over to the next stage of the criminal case i'd like to begin a guess that would mean as a conceptual matter even if not as a practical matter but as a conceptual matter that the government could force somebody to testify against himself in such a proceeding well to be clear justice kagan we think that a defendant in that situation  the would still have a valid privilege against self incrimination because he could reasonably fear that anything he says in that probable cause hearing could then be used against him at the trial to prove his guilt so a defendant could invoke his privilege to prevent that testimony and at that point the only way the government could compel the defendant to speak would be to formally grant him immunity so this is why i said maybe not as a practical matter but as a conceptual matter you would be saying that the government could if it chose and if it except at certain consequences could force him to testify against himself only by granting that immunity and court is recognizing the immunity cases by then conveying on the defendant conferring on how about this if he didn't  testify could could the government draw an inference against him for failing to testify and the government could for example in a civil case i think that the government could draw the adverse inference but i think the inference would only matter if the government had already come forward with sufficient evidence to show that you would expect the defendant to respond to that and to speak at that hearing and at that point i think the government has already proven probable cause so i can't imagine any case where it would make a difference to draw an adverse inference against a defendant in that situation you know i guess my questions are just that it seems odd for something that is under stood to be a part of the criminal case i don't i take it that you have no continuing objection to that view either that's right i think this is part of the whole and i don't just seems odd for something that is clearly part of a criminal case to say yes the government can draw an adverse interim inference but don't worry we won't it will never come up and yes the government could force him to testify against himself but don't worry we would have to give him immunity and we and we wouldn't want to do that just seems conceptually a difficult position well i think that the reason we think that that is so and that those things are permissible is because the consequence of that probable cause hearing is simply an interim step in a criminal procedure that well that will then go want the criminal trial and i think that in the context of that proceeding with the defendants not exposed to the risk that those statements are going to be used for the really consequential things for guilt and punishment he hasn't i'm sorry and if you if you don't win at the probable cause hearing that in the case so it has a consequence with respect to his innocence or were not his innocence but he's been proven a judgment of conviction and criminal punishment it increases the possibility of his be found guilty and punishment and i think that that can't be the test because it would be inconsistent with this court's decision in a stealth versus met the court the recognize there would be no self incrimination problem with using a defendant's compelled statement to adjudicate his competent what about all the things i mean how does it work i'm not not conduct a grand jury so my colleagues have but i mean i can imagine all kinds of unconstitutionally seized evidence that could violate the fourth amendment you could violate the fifth amendment coerced confession you could violate any one of fifteen they're not fifteen but you know five or six different constitutional prohibitions and if the prosecutor says i'm going to go and important point i can tell you that at pretrial probable cause hearings both under the federal rule this is rule five point one and in the majority of state jurisdictions defendants are prohibited by rule from challenging the admission evidence on grounds that it was unlawfully acquired now that doesn't mean that they lack a remedy they can file a motion to suppress if you can get that issue resolved before they have to face the consequence of either taking a plea or going to trial but i think with those rules recognized and there are other distinctions between the body of evidence that's available at the probable cause hearing as only admitted so i think what those rules recognize is that a probable cause hearing is fundamentally distinct from the issues that are going to be resolved at the guilt stage it's a lesser consequence for the defendant he doesn't face the exposure to possibly having his conviction and punishment adjudicated and for that reason courts have recognized in this court in cases like gerstein and brinegar and barbour have recognized that a defendant doesn't have the same right to have that determination made on the body of evidence that w admissible at trial suppose we rule against you on this issue do you think that had that that had would have necessary consequences for any other kinds of proceedings i think it would depend on the basis on which this court ruled against us now i understand that respondent has suggested some ways to narrow what i understand to be the ten circuits rule in this case where as i read the tenth circuit's opinion once you're in the criminal case all proceedings are covered and respondent identifies some limiting constructions that i think would limit the number of procedures to which the role would apply looking at things like what is the legal issue being resolved in the case and what is the potential consequence so in that sense i think that the court could write an opinion that narrows down on the probable cause hearing that was an issue here you think a distinction can be drawn between the two in other words if you if we rule against you will the government come back the next time and say we lose now or will you have a good argument to make i am sure we would not lose or hopefully not i think the argument we would make would then look at the purpose of the gerstein hearing and would say the purpose there is to determine whether pretrial detention should continue and that would be a different purpose than the probable cause determination which is a bind over determination but i think actually that focus on purpose shows why we should prevail in this case because the purpose of this proceeding is fundamentally different and fundamentally distinct from the kinds of issues that a defendant will face if we are informed to determine whether there's enough evidence to go to goes back to the lesser consequences of a probable cause hearing it's not meant to be a full dress rehearsal for trial and it's not meant to necessarily resolve exactly what evidence is going to be admissible in a trial to determine with is enough evidence to go to trial evidence admissible or not because you may not have the defendant's argument the defendant's side of the case and that's the whole point about the grand jury proceedings exactly and i think that that would also be a problem with trying to apply this rule to the gerstein hearing and to other proceedings where there aren't those same adversarial safeguards or adversarial presentations i think of this court were to adopt a rule like the one the tenth circuit adopted here that it really would gum up the works essentially by forcing adjudication of the suppression questions at the outset of the case before earlier in earlier cases observed that a lot of times at the outset of a case the suppression question might be complicated in fact intensive a defendant might not realize that he has a valid claim and so to put the onus on there's a lot of jurisdictions who are to give defendants those rights to do it right at the beginning of the case some exercise it's on the walk them because there's a lot of reasons why the friend and those that want to do it earlier well there's certainly a lot of variance in how state jurisdictions handle this issue adjudicate suppression questions in the sequencing of preliminary proceedings before they resolve other issues in the case if this court were to instead adopt a broader rule and find that any use in any proceeding in a criminal case could violate the fifth amendment and i expect that it would require  substantial changes to the criminal process thank you counsel crunk mr chief justice and may it please the court our test for a violation the self incrimination clause is the one the court has always applied a compelled testimonial incriminating statement cannot be used in a criminal case the test has for requirements each of them comes directly from the fifth amendments text and petitioner concedes three of them here that the statement was compelled that it was used in a criminal case and that it was by a witness which means it was testimony that leaves only the requirement that the statement be against himself this court has long recognized that a statement is against someone when it can be used to criminally prosecute them when it is incriminating petitioner is not contest that officer votes statement was incriminating and said it urges the court to redefine the word against so the cause no longer applies in any criminal case but only in the portion of the criminal case where guilt is ultimately adjudicated there are numerous fatal flaws with this theory i'll start with the fifth amendments text  explanation for why the framers would have chosen the circuitous way to limit the causes application that the framers intended the class to apply only in criminal trials they wouldn't have hidden that limitation in the word against they would have just said in any criminal trial instead of any criminal no certainly not a probable cause is a very low bar i think and cayley the court described it as a reasonable belief that the defendant committed the crime and so once we get to that probable cause hearing if the government has enough evidence to meet that bar outside of the defendant's compelled statement then there is no reason to get into this issue here they'll be able to show probable cause but the point is the government might not have readily available t will use yes but it once we're at the point where we have this adversarial courtroom proceeding which is the last step before moving to trial if all the government has at that point to prove probable cause is the defendant's compelled statement that it makes enormous sense to figure out at that stage whether that statement is admissible or not for the reason justice ginsburg pointed out earlier which is ninety five percent of the time this hearing is the whole ballgame once the prosecution gets its probable cause determination the vast majority of defendants will choose to plead and set of what that's very messy will the content of the plea agreement will be affected by whether or not the statements are going to be admissible at trial it's not as if they don't the prosecutor doesn't have to worry about in deciding what plea offer yes well that but the defendant will be in a position where they won't know about that in this ability determination till they've already rolled the dice and on to trial then the vast majority of defendants are going to take the more conservative route and take that guilt plea even though the government it turns out didn't have even enough evidence i don't know if that's true they have they're represented by counsel he can counsel can look at it and say look they're never going to be able to use this and don't plea to that maybe they offer something else but the fact that it's going to be resolved in the because it's pretty hard to see how you can say you can attack the preliminary hearing and you cannot attack the grand jury and you cannot attack the astelin here all these different hearings that i've been talking about so suddenly were we previously done it for whatever set or historical reasons this will suddenly be subject to a lot of attacks so that makes me pretty careful and for that reason i looked up whether you objected because i do not see how the magistrate running the preliminary hearing can know what to do unless somebody tells him that these statements were taken in violation of the fifth amendment one i don't see where you ever did tell the ma to looking at the transcript of the preliminary hearing i couldn't find any instance were any of the compelled statements were introduced into the preliminary hearing so what i would like you to do is to tell me what pages to look at in the preliminary transcript which i have here which will show that you did object or at least that some of the compelled statement were used so none of this is in the record and the reason it's that i not be in the record but i do if it's not it's an important point is that of course it's an important but but well i before we start having it it's an extended exchange about material and something that's not in the record well i guess i would just like to point out that it's not in the record there's a reason we can find things to watch in the record including how do we know what this is if it's not in the record at the how do we know that it's been adequately had a chance for people to object to it and all that it's not just a passing comment that it's not in the record nor is actually mine a passing comment because article three of the constitution says we are to take real cases and controversies and to decide a major matter where in fact going from what is in the record to an earlier stage of this and discovering if it's true that there was no instance about which you are complaining in my mind raises the question to whether this is in fact an appropriate case or controversy for the court to take and we're supposed to decide whether it the cases or controversies according to law and as far as i'm concerned coming in and saying i want to know about this thing that's not in the record is no difference from somebody else coming off the street and saying and i know what happened in this case so go ahead an answer it's a question that you've been presented with go ahead and you know how i want you to hear it i don't know feel free i'm just saying i will discount the answers because it's not something that's in the record so it's really important to explain complaint adequately alleges that the statement was used in the probable cause hearing petitioners not contesting that and so none of these questions are right for resolution at this point because of petitioners search strategy and this is a very this is a very to take an appeal but i only ask you this what did the did the city violate the fifth amendment at the time when the officer was questioned by lation was not complete until the statement was used in the criminal case adequately alleged proximate cause ation in it i understand that i'm just trying to understand this seems like a very odd case i'm just trying to understand what's really involved that's one thing that that i don't understand so they caused the of proximate cause nation so what the tenth circuit said is that when the police chief went to the kansas bureau of investigation and said here officer votes compelled statements you should initiate a criminal investigation it was reasonably foreseeable that  those statements were ultimately be introduced in the criminal case and i'll say that the ninth circuit and the seventh circuit the sixth circuit have addressed very similar circumstances and come to the same conclusion so i'm not aware of any circuit split on this issue but it's certainly not before this court that the section one thousand eight hundred three question petitioner has chosen to present to this court the fifth amendment question it's a constitutional question everything that's going on below will be decided on  clear the i think the concurring opinion in this case did a very good job of pointing out that all of the questions that are being asked both by justice alito and by justice brier  there is a ruse substantial question about whether any of these statements were compelled me there's a substantial question about whether there was an objection or not there are a lots of questions that the concurrence said still had to be decide that and so if this court wanted to take the cases improvidently granted we would certainly not object i think we said in our brief in opposition that we thought it was premature to take this question at this time but but i can continue to talk about the record  so so going back to the just so going back to the question that petitioner presented to this court could i try this there is a circuit split on this there's three circuits some one side three circuits on the other four now on the other side about the asserted circuit split the cases that are supposedly in support of the petitioners position none of them actually addressed a circumstance where you had a post charge pretrial use of the compelled statement they were all cases similar to chavez where the defendant or the i guess the plaintiff was attempting to rely on pre charge compulsion to make a fifth amendment claim and now in doing so it why should clarify that in the least one of those cases questions so how can you distinguish this from the grand jury so i'm going to attempt to answer that concisely with the caveat that it would take an entire second set of briefs to adequately address the nuances of the court grand jury jurisprudence which is why neither we nor the government attempt at that this is just a very different and more complicated question but my best simple answer is that hubbell in councilman hold that the clause applies to grand juries with this added limitation from law on calandra and williams the courts don't have authority to crack open indictments because of the grand jury's status as an independent constitutional fixture it's not textually assigned to the judicial branch that said courts do crack open indictments all the time that's the whole point of a  a grand jury has made use or derivative use of a compelled immunised statement the remedy is to dismiss the indictment itself unlawful that is irreconcilable with petitioners theory that it's perfectly fine for the government to use compelled statements all the way up to the point of trial so as a practical matter i was going suppose that i just did not want to go into the grand jury business mostly because i think that there is this very long tradition of not cracking the most in unless we have to yes and you know it might be that there is the same right in the grand jury context but we've just decided in a wide variety of ways that that right does not get remedied in the same way as easily as quickly as anything as in other contexts would it be wouldn't that be correct yes that's fine and that's as far as we went in our briefing because again this is such a complicated question but yes that the long calendar williams limitation on cracking open indictments would not apply to probable cause hearings both because you need historical posture isn't there but also because the nature of the proceeding is so different probable cause hearing is an adversarial courtroom proceeding before a judge there isn't anything to crack open so that leads to petitioners policy point about whether it makes sense to apply the clause to probable cause hearings in a way that's different than how the clause applies to grand juries and this court answered that question death of probable cause hearing as the petitioner has made here and it didn't happen it's forty eight years later and the vast majority of states are still using probable cause hearings as the primary mechanism for pursuing felony prosecutions even though the right to counsel is surely more burdensome on the stay then self incrimination privilege so i'd like to go back to the court's precedent because i think this is important not once in the history of this country has this court relied on the term witness against itself himself to limit when the use of a compelled incriminating testimonial statement by elites the clause what is your test for determining whether a proceeding is part of the criminal case for these purposes so i would look to the courts definition of criminal prosecution in r because we know that a criminal case is at least as broad as a criminal prosecution theory says it's the defendant's first appearance before a judicial officer where he is formally told of the charges against him and deprivations are imposed on his liberty there's no question that psychiatric exam at his sentencing proceeding so that holding itself forecloses the notion that the clause is only a trial right but petitioner and the government are latching on to are two sentences of dicta where the court said well if the psychiatric exam had been limited to its function of determining whether the defendant understood the charges against him and was keepable of assisting in his own defense then a fifth amendment problem wouldn't have a rose that is consistent with our position and i'll explain why a competency hearing is part of a criminal case i imagine most of the time but the other three requirements of the claws are going to substantially limit its application to those hearings so a style explains that a routine competency exam is focused exclusively on whether the defendant understands the charges against him and is capable of assisting in his own defense that determination does not require extracting testimonial incriminating statements from the defendant and evidence evidence obtained in violation of the privilege would be miscible in a competency hearing yet so in the narrow circumstance where a defendant has been forced to undergo a psychiatric exam and in answering those questions he makes  compelled incriminating testimony of statement no that can't be emitted in the competency hearing because it's part of the criminal case but that limitation shouldn't affect the utility of competency hearings i think it's important to point out it still didn't even involve a competency hearing there the psychiatrist had sent a letter to the judge that simply said i find that the defendant understands the difference between right and wrong and understands the charges against him so gerstein hearing is not part of the criminal case because it's a fourth amendment requirement it's a substitute for an arrest warrant so this court flesh that point out well last term in the city of juliet and so gerstein itself explains that because it's a fourth amendment requirement the whole panoply of rights in the sixth amendment do not apply to girls i thought you said that the criminal case begins when the perp when the defendant is appears in court and is called upon to answer the charge arrest warrant after the fact so there's no reason that the fifth amendment requirements would apply to that hearing when the sixth amendment requirements don't it's it's said that it's happening at the same time of the as the criminal case it's it's happening in parallel what would be in a criminal in a federal case if there's a complaint wouldn't it begin at the time of the filing of the complaint would not be the beginning of the criminal case yet so agrees to hearing the gerstein determination could be folded in to something that's happening within the criminal case so i understand that to happen sometimes the state will quickly file charges and then fold the gerstein hearing into the arraignment but there's nothing requiring states to do that so in an emergency situation where a state need to take physical custody of someone who has confessed to murdering answer in the federal case when a complaint is filed is that not the beginning of the criminal case in your view so that everything that happens after that is part of the criminal case yes that's right the first appearance for initial appearance in court that's part of the criminal case the bail hearing is part of the criminal case the this is the competent there's a competency hearing that's part of the criminal case it's all part of the criminal yes and bail determinations are made of different sorts of proceedings so but of course in hearing what person this contemplating is this substitute for a warrant so instead of that's when the police want to take custody of someone before they've gotten the arrest warrant they can do so and then go to a neutral adjudicator and say do i have sufficient evidence to justify the arrest that is a fourth amendment requirement i f i understand what you're saying and maybe i don't but it's a substitute for exactly the proceeding that would take place if the police decided that they needed an arrest warrant is that right yes and in that proceeding you would say that  what is the answer to this that there are many many ways in which a statement by an individual could violate the incrimination in this case he is asked questions by his superiors in the police department under threat of believing and they don't know that he considers that to be a violation of the fifth amendment well then those statements go to court situation where their boss says to them you will lose your job if you don't make these statements itself execute so you don't have to release the privilege at at that moment but in response to in response to what they see the supposed to do what happened here is highly unusual since the one nine hundred seventy s the department of justice and police departments across the country have developed best practices to ensure that compelled statements are not used in criminal investigations so once  should investigate this was highly unusual and frankly very hard to understand given the ubiquity of parity protocols in this country so i to go back to your point earlier about with this is a dramatic revolution it's not what we're proposing here is what the law has always been all all police departments across the country in the department of justice would say even before this case coming before the court that what the police chief did here was was illegal i don't understand you talk about it being siloed and not being sure so the idea is you're supposed to pretend that the person didn't say what he said conducting the investigation yes some of the best practices is that whoever was involved in taking that compelled statement is then siloed themselves from the criminal investigation so says you know i buried the body here he's not supposed to tell anybody well if he was asking that question as part of an administrative investigation then then yes that you can't use that statement now there could be an independent criminal as i just want to make sure i understand so he's investigating it and so do you have anything to do with this disappearance in the prisons as i buried the body next to this barn the person at that point suppose say ok i'm going to turn this over to fred and i'm not going to tell him anything but so you're talking about a government employer making that inquiry of an employee as part of an administrative investigation or yes a government so under those circumstances once the government gives the grant of immunity no that cannot be used that's that's been the investigation and if that were not the true truth that were not the rule so if petitioners theory would correct was correct then me just incentives for employers cooperation and those sorts of administrative investigations would skyrocket because if the grant of immunity only applies a trial you could compel those statements from the employee at pain of losing their job and then turn around and use those statements to criminally prosecute them keep them in custody all the way up to the point of the unwarranted statements and compelled statements so when an warrant statement where the miranda rights are not read is not necessarily a constitutional violation that is a prophylactic exclusionary rule that the court may or may not extend to hearings but when it comes to a compelled statement whether immunized or not the constitution is very clear it cannot be used in a criminal case and that was what the framers intended as well we know that the framers based the clause on a common law privilege but first of all no employer his employer to compile these statements he went to his employer because he wanted a different job that was true for the first statement are right on the second statement he went to his chief and said i'm resigning sorry so that that's not actually correct so he voluntarily made the first statement to the police chief the police chief then told him he had needed to document what had happened on pain of losing his job that is the compelled statement then after he made that statement he tendered his resignation and then there was a third statement in which he gave more details about what had happened so it's the question of the impact of the resignation on that third statement i third i'll take it but that's still an option it is and again it's an odd case because petitioners chose to seek this court's review at the pleading stage and petitioner chose to present only the fifth amendment question to this court case goes to trial that you will prove that the officer suffered damage as a result of probable cause hearing or as a result of having been as a result of the admission that he made under alleged allegedly under compulsion by the city so it would be the use of the statement in the probable cause hearing the complaint alleges emotional damages reputational damage loss of income of damages the petitioner has not contested the adequacy of those values you will prove that the reason why he didn't get the job with the other police department was the probable cause hearing and not the statement that he made no that would be inconsistent with the complaint  that what we're talking about here is an incriminating testimonial statement that the government has extracted from the defendant against his will there is nothing radical about saying that the government should not be able to use that statement for any purpose in a criminal case that is that was the framers position they found it offensive to a civilized system of justice to allow prosecutors to act to elicit defendants as instruments in their own condemnation they thought it was crucial to our counsel for minutes mister just like to make three quick points in rebuttal one in response to justice kagan's point about the apparent oddity with regard to this particular proceeding one about suppression hearings and one about garrity so in response to justice questions about the oddity of this particular type of hearing i think beyond the fact that the supreme court of kansas has held that the purpose of this hearing is not to adjudicate guilt or punishment i think an even more important indication of that is that under kansas law nothing that happened at this hearing could conclusively resolve officer votes of guilt or innocence one way or the other and the way the reason that we know that is because the supreme court has specifically held that the dismissal of charges after a probable cause hearing is not preclude of and without prejudice to the state's ability to reinitiate the exact same criminal prosecution which is the same rule for grand juries right the court has said that just because a grand jury refuses to return an indictment does not mean that the prosecution cannot ask another grand jury to return an indictment and in fact the supreme court of kansas has reversed trial courts who have dismissed a probable cause hearing on the theory that the government will not be able to carry its proof beyond a reasonable doubt burden a trial because they said that's not the purpose of this hearing this hearing does not adjudicate guilt or innocence the point on suppression hearings i think it's just worth emphasizing again in response to justice ginsburg's point we are not talking about the possibility that someone will have to decide to plead guilty without being able to challenge evidence for one very simple reason they can file a pretrial motion to suppress many it is true that a large majority of prosecutions are resolve the a guilty plea but it is also true that before pleading guilty defendants often file pretrial motions to suppress and only plead guilty after the denial of their motion to suppress in the federal system they are even sometimes permitted to file a conditional guilty plea to preserve their ability to challenge the admissibility of the evidence on appeal so we're not talking about taking people away people's ability to challenge and then last but not least we didn't discuss it in the initial argument but this the second argument that we have raised the second independent argument relates that this court could say whatever the rule might be with regard to other types of fifth amendment claims there can be no guarantee violation until trial it would actually be very similar to what i understand a supermajority of this court said in chavez with regard to miranda claims i understand that in chavez the court was deeply divided about whether there were circumstances in which an involuntary claim could occur before trial but as i understood even some of the dissenting justices in chavez said a miranda claim is something that can only occur until trial and i think that would make sense when it comes to garrity claims garrity does not forbid the taking of the statements there can be no garrity violation when the statement is taken the violation under garrity is the later use of the statement and so we would suggest that if the court doesn't want to reach the broader issue they could simply say that this type of fifth amendment violation cannot occur until the statements are used to trial