378 U.S. 1 (1964), 110, Malloy v. Hogan

Docket Nº:No. 110
Citation:378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653
Party Name:Malloy v. Hogan
Case Date:June 15, 1964
Court:United States Supreme Court

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378 U.S. 1 (1964)

84 S.Ct. 1489, 12 L.Ed.2d 653




No. 110

United States Supreme Court

June 15, 1964

Argued March 5, 1964



Petitioner, who was on probation after pleading guilty to a gambling misdemeanor, was ordered to testify before a referee appointed by a state court to investigate gambling and other criminal activities. He refused to answer questions about the circumstances of his arrest and conviction on the ground that the answers might incriminate him. Adjudged in contempt and committed to prison until he answered, he filed an application for writ of habeas corpus, which the highest state court denied. It ruled that petitioner was protected against prosecution growing out of his replies to all but one question, and that, as to that question, his failure to explain how his answer would incriminate him negated his claim to the protection of the privilege under state law.


1. The Fourteenth Amendment prohibits state infringement of the privilege against self-incrimination, just as the Fifth Amendment prevents the Federal Government from denying the privilege. P. 8.

2. In applying the privilege against self-incrimination, the same standards determine whether an accused's silence is justified regardless of whether it is a federal or state proceeding at which he is called to testify. P. 11.

3. The privilege is available to a witness in a statutory inquiry as well as to a defendant in a criminal prosecution. P. 11.

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4. Petitioner's claim of privilege as to all the questions should have been upheld, since it was evident from the implication of each question, in the setting in which it was asked, that a response or an explanation why it could not be answered might be dangerous because injurious disclosure would result. Hoffman v. United States, 341 U.S. 479, followed. Pp. 11-14.

150 Conn. 220, 187 A.2d 744, reversed.

BRENNAN, J., lead opinion

MR. JUSTICE BRENNAN delivered the opinion of the Court.

In this case, we are asked to reconsider prior decisions holding that the privilege against self-incrimination is not safeguarded against state action by the Fourteenth Amendment. Twining v. New Jersey, 211 U.S. 78; Adamson v. California, 332 U.S. 46.1

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The petitioner was arrested during a gambling raid in 1959 by Hartford, Connecticut, police. He pleaded guilty to the crime of pool selling, a misdemeanor, and was sentenced to one year in jail and fined $500. The sentence was ordered to be suspended after 90 days, at which time he was to be placed on probation for two years. About 16 months after his guilty plea, petitioner was ordered to testify before a referee appointed by the Superior Court of Hartford County to conduct an inquiry into alleged gambling and other criminal activities [84 S.Ct. 1491] in the county. The petitioner was asked a number of questions related to events surrounding his arrest and conviction. He refused to answer any question "on the grounds it may tend to incriminate me." The Superior Court adjudged him in contempt, and committed him to prison until he was willing to answer the questions. Petitioner's application for a writ of habeas corpus was denied by the Superior Court, and the Connecticut Supreme Court of Errors affirmed. 150 Conn. 220, 187 A.2d 744. The latter court held that the Fifth Amendment's privilege against self-incrimination was not available to a witness in a state proceeding, that the Fourteenth Amendment extended no privilege to him, and that the petitioner had not properly invoked the privilege available under the Connecticut Constitution. We granted certiorari. 373 U.S. 948. We reverse. We hold that the Fourteenth Amendment guaranteed the petitioner the protection of the Fifth Amendment's privilege against self-incrimination and that, under the applicable federal standard, the Connecticut Supreme Court of Errors erred in holding that the privilege was not properly invoked.

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The extent to which the Fourteenth Amendment prevents state invasion of rights enumerated in the first eight Amendments has been considered in numerous cases in this Court since the Amendment's adoption in 1868. Although many Justices have deemed the Amendment to incorporate all eight of the Amendments,2 the view which has thus far prevailed dates from the decision in 1897 in Chicago, B. & Q. R. Co. v. Chicago, 166 U.S. 226, which held that the Due Process Clause requires the States to pay just compensation for private property taken for public use.3 It was on the authority of that decision that the Court said in 1908, in Twining v. New Jersey, supra, that

it is possible that some of the personal rights safeguarded by the first eight Amendments

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against National action may also be safeguarded against state action because a denial of them would be a denial of due process of law.

211 U.S. at 99.

[84 S.Ct. 1492] The Court has not hesitated to reexamine past decisions according the Fourteenth Amendment a less central role in the preservation of basic liberties than that which was contemplated by its Framers when they added the Amendment to our constitutional scheme. Thus, although the Court, as late as 1922, said that

neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the States any restrictions about "freedom of speech" . . . ,

Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543, three years later, Gitlow v. New York, 268 U.S. 652, initiated a series of decisions which today hold immune from state invasion every First Amendment protection for the cherished rights of mind and spirit -- the freedoms of speech, press, religion, assembly, association, and petition for redress of grievances.4

Similarly, Palko v. Connecticut, 302 U.S. 319, decided in 1937, suggested that the rights secured by the Fourth Amendment were not protected against state action, citing, 302 U.S. at 324, the statement of the Court in 1914 in Weeks v. United States, 232 U.S. 383, 398, that "the Fourth Amendment is not directed to individual misconduct of [state] officials." In 1961, however, the

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Court held that, in the light of later decisions,5 it was taken as settled that

. . . the Fourth Amendment's right of privacy has been declared enforceable against the States through the Due Process Clause of the Fourteenth. . . .

Mapp v. Ohio, 367 U.S. 643, 655. Again, although the Court held in 1942 that, in a state prosecution for a noncapital offense, "appointment of counsel is not a fundamental right," Betts v. Brady, 316 U.S. 455, 471; cf. Powell v. Alabama, 287 U.S. 45, only last Term, this decision was reexamined and it was held that provision of counsel in all criminal cases was "a fundamental right, essential to a fair trial," and thus was made obligatory on the States by the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 343-344.6

We hold today that the Fifth Amendment's exception from compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgment by the States. Decisions of the Court since Twining and Adamson have departed from the contrary view expressed in those cases. We discuss first the decisions which forbid the [84 S.Ct. 1493] use of coerced confessions in state criminal prosecutions.

Brown v. Mississippi, 297 U.S. 278, was the first case in which the Court held that the Due Process Clause prohibited the States from using the accused's coerced confessions against him. The Court in Brown felt impelled, in light of Twining, to say that its conclusion did not involve the privilege against self-incrimination. "Compulsion by torture to extort a confession is a different matter." 297 U.S. at 285. But this distinction was soon

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abandoned, and today the admissibility of a confession in a state criminal prosecution is tested by the same standard applied in federal prosecutions since 1897, when, in Bram v. United States, 168 U.S. 532, the Court held that,

[i]n criminal trials in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States commanding that no person "shall be compelled in any criminal case to be a witness against himself."

Id. at 542. Under this test, the constitutional inquiry is not whether the conduct of state officers in obtaining the confession was shocking, but whether the confession was

free and voluntary: that is, [it] must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. . . .

Id. at 542-543; see also Hardy v. United States, 186 U.S. 224, 229; Wan v. United States, 266 U.S. 1, 14; Smith v. United States, 348 U.S. 147, 150. In other words, the person must not have been compelled to incriminate himself. We have held inadmissible even a confession secured by so mild a whip as the refusal, under certain circumstances, to allow a suspect to call his wife until he confessed. Haynes v. Washington, 373 U.S. 503.

The marked shift to the federal standard in state cases began with Lisenba v. California, 314 U.S. 219, where the Court spoke of the accused's "free choice to admit, to deny or to refuse to answer." Id. at 241. See Ashcraft v. Tennessee, 322 U.S. 143; Malinski v. New York, 324 U.S. 401; Spano v. New York, 360 U.S. 315; Lynumn v. Illinois, 372 U.S. 528; Haynes v. Washington, 373 U.S. 503. The shift reflects recognition that the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay. Rogers v. Richmond, 365 U.S. 534,

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541. Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence...

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