Erin Hughes

Document Type

Supreme Court Commentaries

Publication Date



Fifth Amendment, Self-Incrimination, Pretrial Procedures

Subject Category

Constitutional Law


This Note argues that a “criminal case,” as provided by the Fifth Amendment, begins with the initiation of adversarial judicial criminal proceedings, whether that commencement occurs through a formal charge, a preliminary hearing, indictment, information, or arraignment. A broad understanding of the Fifth Amendment’s scope aligns with the Second, Seventh, Ninth and Tenth Circuits’ analysis. In particular, this Note endorses the in-depth analysis provided by the Tenth Circuit in its determination that a “criminal case” under the Fifth Amendment includes preliminary proceedings. This Note further offers an analysis of past Supreme Court precedent as well as policy rationales that support a more liberal understanding of “criminal case.”