Malloy v. Hogan, 110

• Decision Date: 15 June 1964
• Docket Number: No. 110,110
• Parties: William MALLOY, Petitioner, v. Patrick J. HOGAN, Sheriff of Hartford County
• Court: U.S. Supreme Court

378 U.S. 1

84 S.Ct. 1489

12 L.Ed.2d 653

William MALLOY, Petitioner,

v Patrick J. HOGAN, Sheriff of Hartford County.

No. 110.

Argued March 5, 1964.

Decided June 15, 1964.

Harold Strauch, Hartford, Conn., for petitioner.

John D. LaBelle, Manchester, Conn., for respondent.

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, 29 S.Ct. 14, 53 L.Ed. 97; Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903. ¹ 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 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, 83 S.Ct. 1680, 10 L.Ed.2d 704. 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.

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, 17 S.Ct. 581, 41 L.Ed. 979, 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 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, 29 S.Ct., at 19.

The Court has not hesitated to re-examine 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. of America v. Cheek, 259 U.S. 530, 543, 42 S.Ct. 516, 522, 66 L.Ed. 1044, three years later Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138, 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, 58 S.Ct. 149, decided in 1937, suggested that the rights secured by the Fourth Amendment were not protected against state action, citing 302 U.S., at 324, 58 S.Ct., at 151, the statement of the Court in 1914 in Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 346, that 'the 4th Amendment is not directed to individual misconduct of (state) officials.' In 1961, however, the 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, 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081. Again, although the Court held in 1942 that in a state prosecution for a non-capital offense, 'appointment of counsel is not a fundamental right,' Betts v. Brady, 316 U.S. 455, 471, 62 S.Ct. 1252, 1261, 86 L.Ed. 1595; cf. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, only last Term this decision was re-examined 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, 83 S.Ct. 792, 796.⁶

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 use of coerced confessions in state criminal prosecutions.

Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682, 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, 56 S.Ct., at 464. But this distinction was soon 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, 18 S.Ct. 183, 42 L.Ed. 568, 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., 168 U.S. at 542, 18 S.Ct. at 187. 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., 168 U.S. at 542—43, 18 S.Ct. at 186—187; see also Hardy v. United States, 186 U.S. 224, 229, 22 S.Ct. 889, 891, 46 L.Ed. 1137; Ziang Sun Wan v. United States, 266 U.S. 1, 14, 45 S.Ct. 1, 3, 69 L.Ed. 131; Smith v. United States, 348 U.S. 147, 150, 75 S.Ct. 194, 196, 99 L.Ed. 192. 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, 83 S.Ct. 1336, 10 L.Ed.2d 513.

The marked shift to the federal standard in state cases began with Lisenba v. California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166, where the Court spoke of the accused's 'free choice to admit, to deny, or to refuse to answer.' Id., 314 U.S. at 241, 62 S.Ct. at 292. See Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192; Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029; Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265; Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922; 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. 534 541, 81 S.Ct. 735, 739, 5 L.Ed. 760. Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not be coercion prove a charge against an accused out of his own mouth. Since the Fourteenth Amendment prohibits the States from inducing a person to confess through 'sympathy falsely aroused,' Spano v. New York, supra, 360 U.S., at 323, 79 S.Ct., at 1207, or other like inducement far short of 'compulsion by torture,' Haynes v. Washington, supra, it follows a fortiori that it also forbids the States to resort to imprisonment, as here, to compel him to answer questions that might incriminate him. The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement—the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty, as held in Twining, for such silence.

This conclusion is fortified by our recent decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, overruling Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, which...