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.
Held:
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.
378 U. S. 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.
378 U. S. 11.
3. The privilege is available to a witness in a statutory
inquiry as well as to a defendant in a criminal prosecution. P.
378 U. S. 11.
Page 378 U. S. 2
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.
378 U. S.
11-14.
150 Conn. 220, 187 A.2d 744, reversed.
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.
[
Footnote 1]
Page 378 U. S. 3
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. 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.
Page 378 U. S. 4
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, [
Footnote 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.
[
Footnote 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
Page 378 U. S. 5
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
211 U. S.
99.
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,
259 U. S. 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. [
Footnote 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
302 U. S. 324,
the statement of the Court in 1914 in
Weeks v. United
States, 232 U. S. 383,
232 U. S. 398,
that "the Fourth Amendment is not directed to individual misconduct
of [state] officials." In 1961, however, the
Page 378 U. S. 6
Court held that, in the light of later decisions, [
Footnote 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,
367 U. S. 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,
316 U. S. 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,
372 U. S.
343-344. [
Footnote
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, 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
297 U. S. 285.
But this distinction was soon
Page 378 U. S. 7
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
168 U. S. 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
168 U. S.
542-543;
see also Hardy v. United States,
186 U. S. 224,
186 U. S. 229;
Wan v. United States, 266 U. S. 1,
266 U. S. 14;
Smith v. United States, 348 U. S. 147,
348 U. S. 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
314 U. S. 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,
Page 378 U. S. 8
365 U. S. 541.
Governments, state and federal, are thus constitutionally compelled
to establish guilt by evidence independently and freely secured,
and may not, by 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, at
360 U. S. 323,
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,
overruling
Wolf v. Colorado, 338 U. S.
25, which had held
"that, in a prosecution in a State court for a State crime, the
Fourteenth Amendment does not forbid the admission of evidence
obtained by an unreasonable search and seizure,"
338 U.S. at
338 U. S. 33.
Mapp held that the Fifth Amendment privilege against
self-incrimination implemented the Fourth Amendment in such cases,
and that the two guarantees of personal security conjoined in the
Fourteenth Amendment to make the exclusionary rule obligatory upon
the States. We relied upon the great case of
Boyd v. United
States, 116 U. S. 616,
decided in 1886, which, considering the Fourth and Fifth Amendments
as running "almost into each other,"
id. at
116 U. S. 630,
held that
"Breaking into a house and opening boxes and drawers are
circumstances of aggravation; but any forcible and compulsory
extortion of a man's own testimony or of his private papers to be
used as evidence to convict him of crime or to forfeit his goods is
within
Page 378 U. S. 9
the condemnation of [those Amendments]. . . ."
At
116 U. S. 630.
We said in
Mapp:
"We find that, as to the Federal Government, the Fourth and
Fifth Amendments, and, as to the States, the freedom from
unconscionable invasions of privacy and the freedom from
convictions based upon coerced confessions, do enjoy an 'intimate
relation' in their perpetuation of 'principles of humanity and
civil liberty [secured] . . . only after years of struggle,'
Bram v. United States, 168 U. S. 532,
168 U. S.
543-544. . . . The philosophy of each Amendment and of
each freedom is complementary to, although not dependent upon, that
of the other in its sphere of influence -- the very least that,
together, they assure in either sphere is that no man is to be
convicted on unconstitutional evidence."
367 U.S. at
367 U. S.
656-657. In thus returning to the
Boyd view
that the privilege is one of the "principles of a free government,"
116 U.S. at
116 U. S. 632,
[
Footnote 7]
Mapp
necessarily repudiated the
Twining concept of the
privilege as a mere rule of evidence "best defended not as an
unchangeable principle of universal justice, but as a law proved by
experience to be expedient." 211 U.S. at
211 U. S.
113.
The respondent Sheriff concedes in his brief that, under our
decisions, particularly those involving coerced
Page 378 U. S. 10
confessions, "the accusatorial system has become a fundamental
part of the fabric of our society and, hence, is enforceable
against the States." [
Footnote
8] The State urges, however, that the availability of the
federal privilege to a witness in a state inquiry is to be
determined according to a less stringent standard than is
applicable in a federal proceeding. We disagree. We have held that
the guarantees of the First Amendment,
Gitlow v. New York,
supra; Cantwell v. Connecticut, 310 U.
S. 296;
Louisiana ex rel. Gremillion v. NAACP,
366 U. S. 293, the
prohibition of unreasonable searches and seizures of the Fourth
Amendment,
Ker v. California, 374 U. S.
23, and the right to counsel guaranteed by the Sixth
Amendment,
Gideon v. Wainwright, supra, are all to be
enforced against the States under the Fourteenth Amendment
according to the same standards that protect those personal rights
against federal encroachment. In the coerced confession cases,
involving the policies of the privilege itself, there has been no
suggestion that a confession might be considered coerced if used in
a federal, but not a state, tribunal. The Court thus has rejected
the notion that the Fourteenth Amendment applies to the States only
a "watered-down, subjective version of the individual
Page 378 U. S. 11
guarantees of the Bill of Rights,"
Ohio ex rel. Eaton v.
Price, 364 U. S. 263,
364 U. S. 275
(dissenting opinion). If
Cohen v. Hurley, 366 U.
S. 117, and
Adamson v. California, supra,
suggest such an application of the privilege against
self-incrimination, that suggestion cannot survive recognition of
the degree to which the
Twining view of the privilege has
been eroded. What is accorded is a privilege of refusing to
incriminate one's self, and the feared prosecution may be by either
federal or state authorities.
Murphy v. Waterfront Comm'n,
post, p.
378 U. S. 52. It
would be incongruous to have different standards determine the
validity of a claim of privilege based on the same feared
prosecution depending on whether the claim was asserted in a state
or federal court. Therefore, the same standards must determine
whether an accused's silence in either a federal or state
proceeding is justified.
We turn to the petitioner's claim that the State of Connecticut
denied him the protection of his federal privilege. It must be
considered irrelevant that the petitioner was a witness in a
statutory inquiry, and not a defendant in a criminal prosecution,
for it has long been settled that the privilege protects witnesses
in similar federal inquiries.
Counselman v. Hitchcock,
142 U. S. 547;
McCarthy v. Arndstein, 266 U. S. 34;
Hoffman v. United States, 341 U.
S. 479. We recently elaborated the content of the
federal standard in
Hoffman:
"The privilege afforded not only extends to answers that would
in themselves support a conviction . . . , but likewise embraces
those which would furnish a link in the chain of evidence needed to
prosecute. . . . [I]f the witness, upon interposing his claim, were
required to prove the hazard . . . , he would be compelled to
surrender the very protection which the privilege is designed to
guarantee. To sustain the privilege, it need only be evident from
the implications of the question, in the setting in which it is
Page 378 U. S. 12
asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be dangerous because
injurious disclosure could result."
341 U.S. at
341 U. S.
486-487. We also said that, in applying that test, the
judge must be
"'
perfectly clear, from a careful consideration of all
the circumstances in the case, that the witness is mistaken, and
that the answer[s]
cannot possibly have such tendency' to
incriminate."
341 U.S. at
341 U. S. 488.
The State of Connecticut argues that the Connecticut courts
properly applied the federal standards to the facts of this case.
We disagree.
The investigation in the course of which petitioner was
questioned began when the Superior Court in Hartford County
appointed the Honorable Ernest A. Inglis, formerly Chief Justice of
Connecticut, to conduct an inquiry into whether there was
reasonable cause to believe that crimes, including gambling, were
being committed in Hartford County. Petitioner appeared on January
16 and 25, 1961, and, in both instances, he was asked substantially
the same questions about the circumstances surrounding his arrest
and conviction for pool selling in late 1959. The questions which
petitioner refused to answer may be summarized as follows: (1) for
whom did he work on September 11, 1959; (2) who selected and paid
his counsel in connection with his arrest on that date and
subsequent conviction; (3) who selected and paid his bondsman; (4)
who paid his fine; (5) what was the name of the tenant of the
apartment in which he was arrested, and (6) did he know John
Bergoti. The Connecticut Supreme Court of Errors ruled that the
answers to these questions could not tend to incriminate him,
because the defenses of double jeopardy and the running of the
one-year statute of limitations on misdemeanors would defeat any
prosecution growing out of his answers to the first
Page 378 U. S. 13
five questions. As for the sixth question, the court held that
petitioner's failure to explain how a revelation of his
relationship with Bergoti would incriminate him vitiated his claim
to the protection of the privilege afforded by state law.
The conclusions of the Court of Errors, tested by the federal
standard, fail to take sufficient account of the setting in which
the questions were asked. The interrogation was part of a
wide-ranging inquiry into crime, including gambling, in Hartford.
It was admitted on behalf of the State at oral argument -- and
indeed it is obvious from the questions themselves -- that the
State desired to elicit from the petitioner the identity of the
person who ran the pool-selling operation in connection with which
he had been arrested in 1959. It was apparent that petitioner might
apprehend that, if this person were still engaged in unlawful
activity, disclosure of his name might furnish a link in a chain of
evidence sufficient to connect the petitioner with a more recent
crime for which he might still be prosecuted. [
Footnote 9]
Analysis of the sixth question, concerning whether petitioner
knew John Bergoti, yields a similar conclusion. In the context of
the inquiry, it should have been apparent to the referee that
Bergoti was suspected by the State to be involved in some way in
the subject matter of the investigation. An affirmative answer to
the question
Page 378 U. S. 14
might well have either connected petitioner with a more recent
crime or at least have operated as a waiver of his privilege with
reference to his relationship with a possible criminal.
See
Rogers v. United States, 340 U. S. 367. We
conclude therefore that, as to each of the questions, it was
"evident from the implications of the question, in the setting
in which it [was] asked, that a responsive answer to the question
or an explanation of why it [could not] be answered might be
dangerous because injurious disclosure could result,"
Hoffman v. United States, 341 U.S. at
341 U. S.
486-487;
see Singleton v. United States, 343
U.S. 944.
Reversed.
While MR. JUSTICE DOUGLAS joins the opinion of the Court, he
also adheres to his concurrence in
Gideon v. Wainwright,
372 U. S. 335,
372 U. S.
345.
[
Footnote 1]
In both cases, the question was whether comment upon the failure
of an accused to take the stand in his own defense in a state
prosecution violated the privilege. It was assumed, but not
decided, in both cases that such comment in a federal prosecution
for a federal offense would infringe the provision of the Fifth
Amendment that "no person . . . shall be compelled in any criminal
case to be a witness against himself." For other statements by the
Court that the Fourteenth Amendment does not apply the federal
privilege in state proceedings,
see Cohen v. Hurley,
366 U. S. 117,
366 U. S.
127-129;
Snyder v. Massachusetts, 291 U. S.
97,
291 U. S.
105.
[
Footnote 2]
Ten Justices have supported this view.
See Gideon v.
Wainwright, 372 U. S. 335,
372 U. S. 346
(opinion of MR. JUSTICE DOUGLAS). The Court expressed itself as
unpersuaded to this view in
In re Kemmler, 136 U.
S. 436,
136 U. S.
448-449;
McElvaine v. Brush, 142 U.
S. 155,
142 U. S.
158-159;
Maxwell v. Dow, 176 U.
S. 581,
176 U. S.
597-598;
Twining v. New Jersey, supra, p.
211 U. S. 96.
See Spies v. Illinois, 123 U. S. 131.
Decisions that particular guarantees were not safeguarded against
state action by the Privileges and Immunities Clause or other
provision of the Fourteenth Amendment are:
United States v.
Cruikshank, 92 U. S. 542,
92 U. S. 551;
Prudential Ins. Co. v. Cheek, 259 U.
S. 530,
259 U. S. 543
(First Amendment);
Presser v. Illinois, 116 U.
S. 252,
116 U. S. 265
(Second Amendment);
Weeks v. United States, 232 U.
S. 383,
232 U. S. 398
(Fourth Amendment);
Hurtado v. California, 110 U.
S. 516,
110 U. S. 538
(Fifth Amendment requirement of grand jury indictments);
Palko
v. Connecticut, 302 U. S. 319,
302 U. S. 328
(Fifth Amendment double jeopardy);
Maxwell v. Dow, supra,
at
176 U. S. 595
(Sixth Amendment jury trial);
Walker v. Sauvinet,
92 U. S. 90,
92 U. S. 92
(Seventh Amendment jury trial);
In re Kemmler, supra; McElvaine
v. Brush, supra; O'Neil v. Vermont, 144 U.
S. 323,
144 U. S. 332
(Eighth Amendment prohibition against cruel and unusual
punishment).
[
Footnote 3]
In
Barron v.
Baltimore, 7 Pet. 243, decided before the adoption
of the Fourteenth Amendment, Chief Justice Marshall, speaking for
the Court, held that this right was not secured against state
action by the Fifth Amendment's provision: "Nor shall private
property be taken for public use, without just compensation."
[
Footnote 4]
E.g., Gitlow v. New York, 268 U.
S. 652,
268 U. S. 666
(speech and press);
Lovell v. City of Griffin,
303 U. S. 444,
303 U. S. 450
(speech and press);
New York Times Co. v. Sullivan,
376 U. S. 254
(speech and press);
Staub v. City of Baxley, 355 U.
S. 313,
355 U. S. 321
(speech);
Grosjean v. American Press Co., 297 U.
S. 233,
297 U. S. 244
(press);
Cantwell v. Connecticut, 310 U.
S. 296,
310 U. S. 303
(religion);
De Jonge v. Oregon, 299 U.
S. 353,
299 U. S. 364
(assembly);
Shelton v. Tucker, 364 U.
S. 479,
364 U. S. 486
(association);
Louisiana ex rel. Gremillion v. NAACP,
366 U. S. 293,
366 U. S. 296
(association);
NAACP v. Button, 371 U.
S. 415 (association and speech);
Brotherhood of
Railroad Trainmen v. Virginia ex rel. Virginia State Bar,
377 U. S. 1
(association).
[
Footnote 5]
See Wolf v. Colorado, 338 U. S. 25,
338 U. S. 27-28;
Elkins v. United States, 364 U. S. 206,
364 U. S.
213.
[
Footnote 6]
See also Robinson v. California, 370 U.
S. 660,
370 U. S. 666,
which, despite
In re Kemmler, supra; McElvaine v. Brush, supra;
O'Neil v. Vermont, supra, made applicable to the States the
Eighth Amendment's ban on cruel and unusual punishments.
[
Footnote 7]
Boyd had said of the privilege,
". . . any compulsory discovery by extorting the party's oath .
. . to convict him of crime . . . is contrary to the principles of
a free government. It is abhorrent to the instincts of an
Englishman; it is abhorrent to the instincts of an American. It may
suit the purposes of despotic power, but it cannot abide the pure
atmosphere of political liberty and personal freedom."
116 U.S. at
116 U. S.
631-632.
Dean Griswold has said:
"I believe the Fifth Amendment is, and has been through this
period of crisis, an expression of the moral striving of the
community. It has been a reflection of our common conscience, a
symbol of the America which stirs our hearts."
The Fifth Amendment Today 73 (1955).
[
Footnote 8]
The brief states further:
"Underlying the decisions excluding coerced confessions is the
implicit assumption that an accused is privileged against
incriminating himself, either in the jail house, the grand jury
room, or on the witness stand in a public trial. . . ."
". . . It is fundamentally inconsistent to suggest, as the
Court's opinions now suggest, that the State is entirely free to
compel an accused to incriminate himself before a grand jury or at
the trial, but cannot do so in the police station. Frank
recognition of the fact that the Due Process Clause prohibits the
States from enforcing their laws by compelling the accused to
confess, regardless of where such compulsion occurs, would not only
clarify the principles involved in confession cases, but would
assist the States significantly in their efforts to comply with the
limitations placed upon them by the Fourteenth Amendment."
[
Footnote 9]
See Greenberg v. United States, 343 U.S. 918,
reversing per curiam 192 F.2d 201;
Singleton v. United
States, 343 U.S. 944,
reversing per curiam 193 F.2d
464. In
United States v. Coffey, 198 F.2d 438 (C.A.3d
Cir.), cited with approval in
Emspac v. United States,
349 U. S. 190, the
Court of Appeals for the Third Circuit stated:
"in determining whether the witness really apprehends danger in
answering a question, the judge cannot permit himself to be
skeptical; rather must he be acutely aware that, in the deviousness
of crime and its detection, incrimination may be approached and
achieved by obscure and unlikely lines of inquiry."
198 F.2d at 440-441.
MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK joins,
dissenting.
Connecticut has adjudged this petitioner in contempt for
refusing to answer questions in a state inquiry. The courts of the
State, whose laws embody a privilege against self-incrimination,
refused to recognize the petitioner's claim of privilege, finding
that the questions asked him were not incriminatory. This Court now
holds the contempt adjudication unconstitutional because, it is
decided: (1) the Fourteenth Amendment makes the Fifth Amendment
privilege against self-incrimination applicable to the States; (2)
the federal standard justifying a claim of this privilege likewise
applies to the States, and (3) judged by that standard the
petitioner's claim of privilege should have been upheld.
Believing that the reasoning behind the Court's decision carries
extremely mischievous, if not dangerous, consequences for our
federal system in the realm of criminal
Page 378 U. S. 15
law enforcement, I must dissent. The importance of the issue
presented and the serious incursion which the Court makes on
time-honored, basic constitutional principles justify a full
exposition of my reasons.
I
I can only read the Court's opinion as accepting in fact what it
rejects in theory: the application to the States, via the
Fourteenth Amendment, of the forms of federal criminal procedure
embodied within the first eight Amendments to the Constitution.
While it is true that the Court deals today with only one aspect of
state criminal procedure, and rejects the wholesale "incorporation"
of such federal constitutional requirements, the logical gap
between the Court's premises and its novel constitutional
conclusion can, I submit, be bridged only by the additional premise
that the Due Process Clause of the Fourteenth Amendment is a
shorthand directive to this Court to pick and choose among the
provisions of the first eight Amendments and apply those chosen,
freighted with their entire accompanying body of federal doctrine,
to law enforcement in the States.
I accept and agree with the proposition that continuing
reexamination of the constitutional conception of Fourteenth
Amendment "due process" of law is required, and that development of
the community's sense of justice may, in time, lead to expansion of
the protection which due process affords. In particular, in this
case, I agree that principles of justice to which due process gives
expression, as reflected in decisions of this Court, prohibit a
State, as the Fifth Amendment prohibits the Federal Government,
from imprisoning a person
solely because he refuses to
give evidence which may incriminate him under the laws of the
State. [
Footnote 2/1] I do not
understand, however,
Page 378 U. S. 16
how this process of reexamination, which must refer always to
the guiding standard of due process of law, including, of course,
reference to the particular guarantees of the Bill of Rights, can
be short-circuited by the simple device of incorporating into due
process, without critical examination, the whole body of law which
surrounds a specific prohibition directed against the Federal
Government. The consequence of such an approach to due process as
it pertains to the States is inevitably disregard of all relevant
differences which may exist between state and federal criminal law
and its enforcement. The ultimate result is compelled uniformity,
which is inconsistent with the purpose of our federal system and
which is achieved either by encroachment on the States'
sovereign
Page 378 U. S. 17
powers or by dilution in federal law enforcement of the specific
protections found in the Bill of Rights.
II
As recently as 1961, this Court reaffirmed that "the Fifth
Amendment's privilege against self-incrimination,"
ante,
p.
378 U. S. 3, was
not applicable against the States.
Cohen v. Hurley,
366 U. S. 117. The
question had been most fully explored in
Twining v. New
Jersey, 211 U. S. 78. Since
1908, when
Twining was decided, this Court has adhered to
the view there expressed that "the exemption from compulsory
self-incrimination in the courts of the States is not secured by
any part of the Federal Constitution," 211 U.S. at
211 U. S. 114.
Snyder v. Massachusetts, 291 U. S. 97,
291 U. S. 105;
Brown v. Mississippi, 297 U. S. 278,
297 U. S. 285;
Palko v. Connecticut, 302 U. S. 319,
302 U. S. 324;
Adamson v. California, 332 U. S. 46;
Knapp v. Schweitzer, 357 U. S. 371,
357 U. S. 374;
Cohen, supra. Although none of these cases involved a
commitment to prison for refusing to incriminate oneself under
state law, and they are relevantly distinguishable from this case
on that narrow ground, [
Footnote
2/2] it is perfectly clear from them that, until today, it has
been regarded as settled law that the
Fifth Amendment
privilege did not, by any process of reasoning, apply
as
such to the States.
The Court suggests that this consistent line of authority has
been undermined by the concurrent development of constitutional
doctrine in the areas of coerced confessions and search and
seizure. This is
post facto reasoning, at best. Certainly
there has been no intimation, until now, that
Twining has
been tacitly overruled.
It was in
Brown v. Mississippi, supra, that this Court
first prohibited the use of a coerced confession in a state
criminal trial. The petitioners in
Brown had been
tortured
Page 378 U. S. 18
until they confessed. The Court was hardly making an artificial
distinction when it said:
". . . [T]he question of the right of the State to withdraw the
privilege against self-incrimination is not here involved. The
compulsion to which the quoted statements [from
Twining
and
Snyder, supra,] refer is that of the
processes of
justice by which the accused may be called as a witness and
required to testify.
Compulsion by torture to extort a
confession is a different matter. [
Footnote 2/3]"
297 U.S. at
297 U. S. 285.
(Emphasis supplied.) The majority is simply wrong when it asserts
that this perfectly understandable distinction "was soon
abandoned,"
ante, pp.
378 U. S. 6-7. In
none of the cases cited,
ante, pp.
378 U. S. 7-8, in
which was developed the full sweep of the constitutional
prohibition against the use of coerced confessions at state trials,
was there anything to suggest that the Fifth Amendment was being
made applicable to state proceedings. In
Lisenba v.
California, 314 U. S. 219, the
privilege against self-incrimination is not mentioned. The relevant
question before the Court was whether
"the evidence [of coercion] requires that we set aside the
finding of two courts and a jury, and adjudge the admission of the
confessions so fundamentally unfair, so contrary to the common
concept of ordered liberty, as to amount to a taking of life
without due process of law."
Id. at
314 U. S. 238.
The question was the same in
Ashcraft v Tennessee,
322 U. S. 143; the
Court there adverted to the "third degree,"
e.g., id. at
322 U. S. 150,
note 5, and "secret inquisitorial practices,"
Page 378 U. S. 19
id. at
322 U. S. 152.
Malinski v. New York, 324 U. S. 401, is
the same; the privilege against self-incrimination is not
mentioned. [
Footnote 2/4] So too,
in
Spano v. New York, 360 U. S. 315;
Lynumn v. Illinois, 372 U. S. 528, and
Haynes v. Washington, 373 U. S. 503.
Finally, in
Rogers v. Richmond, 365 U.
S. 534, although the Court did recognize that "ours is
an accusatorial, and not an inquisitorial, system,"
id. at
365 U. S. 541,
it is clear that the Court was concerned only with the problem of
coerced confessions,
see ibid.; the opinion includes
nothing to support the Court's assertion here,
ante, p.
378 U. S. 7, that
"the Fifth Amendment privilege is . . . [the] essential mainstay"
of our system.
In
Adamson, supra, the Court made it explicit that it
did not regard the increasingly strict standard for determining the
admissibility at trial of an out-of-court confession as undermining
the holding of
Twining. After stating that
"the due process clause does not protect, by virtue of its mere
existence, the accused's freedom from giving testimony by
compulsion in state trials that is secured to him against federal
interference by the Fifth Amendment,"
the Court said:
"The due process clause forbids compulsion to testify by fear of
hurt, torture or exhaustion. It forbids any other type of coercion
that falls within the scope of due process."
332 U.S. at
332 U. S. 54
Page 378 U. S. 20
(footnotes omitted). Plainly, the Court regarded these two lines
of cases as distinct.
See also Palko v. Connecticut,
supra, at
302 U. S. 326,
to the same effect. [
Footnote 2/5]
Cohen, supra, which adhered to
Twining, was
decided after all but a few of the confession cases which the Court
mentions.
The coerced confession cases are relevant to the problem of this
case not because they overruled
Twining sub silentio, but
rather because they applied the same standard of fundamental
fairness which is applicable here. The recognition in them that
federal supervision of state criminal procedures must be directly
based on the requirements of due process is entirely inconsistent
with the theory here espoused by the majority. The parallel
treatment of federal and state cases involving coerced confessions
resulted from the fact that the same demand of due process was
applicable in both; it was not the consequence of the automatic
engrafting of federal law construing constitutional provisions
inapplicable to the States onto the Fourteenth Amendment.
The decision in
Mapp v. Ohio, 367 U.
S. 643, that evidence unconstitutionally seized,
see
Wolf v. Colorado, 338 U. S. 25,
338 U. S. 28,
may not be used in a state criminal trial furnishes no
"fortification,"
see ante, p.
378 U. S. 8, for
today's decision. The very passage from the
Mapp opinion
which the Court quotes,
ante, p.
378 U. S. 9, makes
explicit the distinct bases of the exclusionary rule as applied in
federal and state courts:
"We find that, as to the Federal Government, the Fourth and
Fifth Amendments, and, as to the States, the freedom from
unconscionable invasions of privacy and the freedom from
convictions based upon coerced confessions, do enjoy an 'intimate
relation'
Page 378 U. S. 21
in their perpetuation of 'principles of humanity and civil
liberty [secured] . . . only after years of struggle,'
Bram v.
United States, 168 U. S. 532,
168 U. S.
543-544 (1897)."
367 U.S. at
367 U. S.
656-657 (footnote omitted).
See also id. at
367 U. S. 655.
Although the Court discussed
Boyd v. United States,
116 U. S. 616, a
federal case involving both the Fourth and Fifth Amendments,
nothing in
Mapp supports the statement,
ante p.
378 U. S. 8, that
the Fifth Amendment was part of the basis for extending the
exclusionary rule to the States. The elaboration of
Mapp
in
Ker v. California, 374 U. S. 23, did,
in my view, make the Fourth Amendment applicable to the States
through the Fourteenth; but there is nothing in it to suggest that
the Fifth Amendment went along as baggage.
III
The previous discussion shows that this Court's decisions do not
dictate the "incorporation" of the Fifth Amendment's privilege
against self-incrimination into the Fourteenth Amendment.
Approaching the question more broadly, it is equally plain that the
line of cases exemplified by
Palko v. Connecticut, supra,
in which this Court has reconsidered the requirements which the Due
Process Clause imposes on the States in the light of current
standards, furnishes no general theoretical framework for what the
Court does today.
The view of the Due Process Clause of the Fourteenth Amendment
which this Court has consistently accepted and which has "thus far
prevailed,"
ante, p.
378 U. S. 4, is
that its requirements are as "old as a principle of civilized
government,"
Munn v. Illinois, 94 U. S.
113,
94 U. S. 123,
the specific applications of which must be ascertained "by the
gradual process of judicial inclusion and exclusion . . . ,"
Davidson v. New Orleans, 96 U. S. 97,
96 U. S. 104.
Due process requires "observance of those general rules established
in our system of jurisprudence for the security of private
Page 378 U. S. 22
rights."
Hagar v. Reclamation District No. 108,
111 U. S. 701,
111 U. S. 708.
See Hurtado v. California, 110 U.
S. 516,
110 U. S.
537.
"This court has never attempted to define with precision the
words 'due process of law.' . . . It is sufficient to say that
there are certain immutable principles of justice which inhere in
the very idea of free government which no member of the Union may
disregard. . . ."
Holden v. Hardy, 169 U. S. 366,
169 U. S.
389.
It followed from this recognition that due process encompassed
the fundamental safeguards of the individual against the abusive
exercise of governmental power that some of the restraints on the
Federal Government which were specifically enumerated in the Bill
of Rights applied also against the States. But, while inclusion of
a particular provision in the Bill of Rights might provide
historical evidence that the right involved was traditionally
regarded as fundamental, inclusion of the right in due process was
otherwise entirely independent of the first eight Amendments:
". . . [I] t 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. . . .
If this is
so, it is not because those rights are enumerated in the first
eight Amendments, but because they are of such a nature that they
are included in the conception of due process of law."
Twining, supra, at
211 U. S. 99.
(Emphasis supplied.)
Relying heavily on
Twining, Mr. Justice Cardozo
provided what may be regarded as a classic expression of this
approach in
Palko v. Connecticut, supra. After considering
a number of individual rights (including the right
Page 378 U. S. 23
not to incriminate oneself) which were "not of the very essence
of a scheme of ordered liberty,"
id. at
302 U. S. 325,
he said: '
"We reach a different plane of social and moral values when we
pass to the privileges and immunities that have been taken over
from the earlier articles of the federal bill of rights and brought
within the Fourteenth Amendment by a process of absorption. These
in their origin were effective against the federal government
alone. If the Fourteenth Amendment has absorbed them, the process
of absorption has had its source in the belief that neither liberty
nor justice would exist if they were sacrificed."
Id. at
302 U. S. 326.
Further on, Mr. Justice Cardozo made the independence of the Due
Process Clause from the provisions of the first eight Amendments
explicit:
"Fundamental . . . in the concept of due process, and so in that
of liberty, is the thought that condemnation shall be rendered only
after trial.
Scott v. McNeal, 154 U. S.
34;
Blackmer v. United States, 284 U. S.
421. The hearing, moreover, must be a real one, not a
sham or a pretense.
Moore v. Dempsey, 261 U. S.
86;
Mooney v. Holohan, 294 U. S.
103. For that reason, ignorant defendants in a capital
case were held to have been condemned unlawfully when, in truth,
though not in form, they were refused the aid of counsel.
Powell v. Alabama, supra, pp.
287 U. S.
67,
287 U. S. 68. The decision did
not turn upon the fact that the benefit of counsel would have been
guaranteed to the defendants by the provisions of the Sixth
Amendment if they had been prosecuted in a federal court. The
decision turned upon the fact that, in the particular situation
laid before us in the evidence, the benefit of counsel was
essential to the substance of a hearing."
Id. at
302 U. S.
327.
Page 378 U. S. 24
It is apparent that Mr. Justice Cardozo's metaphor of
"absorption" was
not intended to suggest the
transplantation of case law surrounding the specifies of the first
eight Amendments to the very different soil of the Fourteenth
Amendment's Due Process Clause. For, as he made perfectly plain,
what the Fourteenth Amendment requires of the States does not
basically depend on what the first eight Amendments require of the
Federal Government.
Seen in proper perspective, therefore, the fact that First
Amendment protections have generally been given equal scope in the
federal and state domains, or that, in some areas of criminal
procedure, the Due Process Clause demands as much of the States as
the Bill of Rights demands of the Federal Government, is only
tangentially relevant to the question now before us. It is toying
with constitutional principles to assert that the Court has
"rejected the notion that the Fourteenth Amendment applies to
the states only a 'watered-down, subjective version of the
individual guarantees of the Bill of Rights,'"
ante, pp.
378 U. S. 10-11.
What the Court has, with the single exception of the
Ker
case,
supra, p.
378 U. S. 21;
see infra, p.
378 U. S. 26,
consistently rejected is the notion that the Bill of Rights, as
such, applies to the States in any aspect at all.
If one attends to those areas to which the Court points,
ante, p.
378 U. S. 10, in
which the prohibitions against the state and federal governments
have moved in parallel tracks, the cases, in fact, reveal again
that the Court's usual approach has been to ground the prohibitions
against state action squarely on due process, without intermediate
reliance on any of the first eight Amendments. Although more
recently the Court has referred to the First Amendment to describe
the protection of free expression against state infringement,
earlier cases leave no doubt that such references are "shorthand"
for doctrines developed by another
Page 378 U. S. 25
route. In
Gitlow v. New York, 268 U.
S. 652,
268 U. S. 666,
for example, the Court said:
"For present purposes, we may and do assume that freedom of
speech and of the press -- which are protected by the First
Amendment from abridgment by Congress -- are among the fundamental
personal rights and 'liberties' protected by the due process clause
of the Fourteenth Amendment from impairment by the States."
The Court went on to consider the extent of those freedoms in
the context of state interests. Mr. Justice Holmes, in dissent,
said:
"The general principle of free speech, it seems to me, must be
taken to be included in the Fourteenth Amendment, in view of the
scope that has been given to the word 'liberty' as there used,
although perhaps it may be accepted with a somewhat larger latitude
of interpretation than is allowed to Congress by the sweeping
language that governs or ought to govern the laws of the United
States."
Id. at
268 U. S. 672.
Chief Justice Hughes, in
De Jonge v. Oregon, 299 U.
S. 353,
299 U. S. 364,
gave a similar analysis:
"Freedom of speech and of the press are fundamental rights which
are safeguarded by the due process clause of the Fourteenth
Amendment of the Federal Constitution. . . . The right of peaceable
assembly is a right cognate to those of free speech and free press,
and is equally fundamental. As this Court said in
United States
v. Cruikshank, 92 U. S. 542,
92 U. S.
552:"
"The very idea of a government, republican in form, implies a
right on the part of its citizens to meet peaceably for
consultation in respect to public affairs and to petition for a
redress of grievances."
"The First Amendment of the Federal Constitution expressly
guarantees that right against abridgment
Page 378 U. S. 26
by Congress. But explicit mention there does not argue exclusion
elsewhere. For the right is one that cannot be denied without
violating those fundamental principles of liberty and justice which
lie at the base of all civil and political institutions --
principles which the Fourteenth Amendment embodies in the general
terms of its due process clause."
The coerced confession and search and seizure cases have already
been considered. The former, decided always directly on grounds of
fundamental fairness, furnish no support for the Court's present
views.
Ker v. California, supra, did indeed incorporate
the Fourth Amendment's protection against invasions of privacy into
the Due Process Clause. But that case should be regarded as the
exception which proves the rule. [
Footnote 2/6] The right to counsel in state criminal
proceedings, which this Court assured, in
Gideon v.
Wainwright, 372 U. S. 335,
does not depend on the Sixth Amendment. In
Betts v. Brady,
316 U. S. 455,
316 U. S. 462,
this Court had said:
"Due process of law is secured against invasion by the federal
Government by the Fifth Amendment, and is safeguarded against state
action in identical words by the Fourteenth. The phrase formulates
a concept less rigid and more fluid than those envisaged in other
specific and particular provisions of the Bill of Rights. Its
application is less a matter of rule. Asserted denial is to be
tested by an appraisal of the totality of facts in a given case.
That which may, in one setting, constitute a denial of fundamental
fairness, shocking to the universal sense of justice, may, in other
circumstances, and in the light of other considerations, fall short
of such denial."
(Footnote omitted.)
Page 378 U. S. 27
Although
Gideon overruled
Betts, the
constitutional approach in both cases was the same.
Gideon
was based on the Court's conclusion, contrary to that reached in
Betts, that the appointment of counsel for an indigent
criminal defendant
was essential to the conduct of a fair
trial, and was therefore part of due process. 372 U.S. at
372 U. S.
342-345.
The Court's approach in the present case is, in fact, nothing
more or less than "incorporation" in snatches. If, however, the Due
Process Clause is something more than a reference to the Bill of
Rights, and protects only those rights which derive from
fundamental principles, as the majority purports to believe, it is
just as contrary to precedent and just as illogical to incorporate
the provisions of the Bill of Rights one at a time as it is to
incorporate them all at once.
IV
The Court's undiscriminating approach to the Due Process Clause
carries serious implications for the sound working of our federal
system in the field of criminal law.
The Court concludes, almost without discussion. that "the same
standards must determine whether an accused's silence in either a
federal or state proceeding is justified,"
ante, p.
378 U. S. 11.
About all that the Court offers in explanation of this conclusion
is the observation that it would be "incongruous" if different
standards governed the assertion of a privilege to remain silent in
state and federal tribunals. Such "incongruity," however, is at the
heart of our federal system. The powers and responsibilities of the
state and federal governments are not congruent; under our
Constitution, they are not intended to be. Why should it be
thought, as an
a priori matter, that limitations on the
investigative power of the States are, in all respects, identical
with limitations on the investigative power of the Federal
Government? This certainly
Page 378 U. S. 28
does not follow from the fact that we deal here with
constitutional requirements, for the provisions of the Constitution
which are construed are different.
As the Court pointed out in
Abbate v. United States,
359 U. S. 187,
359 U. S. 195,
"the States, under our federal system, have the principal
responsibility for defining and prosecuting crimes." The Court
endangers this allocation of responsibility for the prevention of
crime when it applies to the States doctrines developed in the
context of federal law enforcement without any attention to the
special problems which the States, as a group or particular States,
may face. If the power of the States to deal with local crime is
unduly restricted, the likely consequence is a shift of
responsibility in this area to the Federal Government, with its
vastly greater resources. Such a shift, if it occurs, may, in the
end, serve to weaken the very liberties which the Fourteenth
Amendment safeguards by bringing us closer to the monolithic
society which our federalism rejects. Equally dangerous to our
liberties is the alternative of watering down protections against
the Federal Government embodied in the Bill of Rights so as not
unduly to restrict the powers of the States. The dissenting opinion
in
Aguilar v. Texas, post, p.
378 U. S. 116,
evidences that this danger is not imaginary.
See my
concurring opinion in
Aguilar, ibid.
Rather than insisting, almost by rote, that the Connecticut
court, in considering the petitioner's claim of privilege, was
required to apply the "federal standard," the Court should have
fulfilled its responsibility under the Due Process Clause by
inquiring whether the proceedings below met the demands of
fundamental fairness which due process embodies. Such an approach
may not satisfy those who see in the Fourteenth Amendment a set of
easily applied "absolutes" which can afford a haven from unsettling
doubt. It is, however, truer to the spirit which requires this
Court constantly to reexamine fundamental
Page 378 U. S. 29
principles and, at the same time, enjoins it from reading its
own preferences into the Constitution.
The Connecticut Supreme Court of Errors gave full and careful
consideration to the petitioner's claim that he would incriminate
himself if he answered the questions put to him. It noted that its
decisions "from a time antedating the adoption of . . . [the
Connecticut] constitution in 1818" had upheld a privilege to refuse
to answer incriminating questions. 150 Conn. 220 223, 187 A.2d 744,
746. Stating that federal cases treating the Fifth Amendment
privilege had "persuasive force" in interpreting its own
constitutional provision, and citing
Hoffman v. United
States, 341 U. S. 479, in
particular, the Supreme Court of Errors described the requirements
for assertion of the privilege by quoting from one of its own
cases, 150 Conn. at 225, 187 A.2d at 747:
"[A] witness . . . has the right to refuse to answer any
question which would tend to incriminate him. But a mere claim on
his part that the evidence will tend to incriminate him is not
sufficient. . . . [He having] made his claim, it is then . . .
[necessary for the judge] to determine in the exercise of a legal
discretion whether, from the circumstances of the case and the
nature of the evidence which the witness is called upon to give,
there is reasonable ground to apprehend danger of criminal
liability from his being compelled to answer. That danger"
"must be real and appreciable, with reference to the ordinary
operation of law in the ordinary course of things -- not a danger
of an imaginary and unsubstantial character, having reference to
some extraordinary and barely possible contingency, so improbable
that no reasonable man would suffer it to influence his conduct. We
think that a merely remote and naked possibility, out of the
ordinary course of law and such as no reasonable man would be
affected by,
Page 378 U. S. 30
should not be suffered to obstruct the administration of
justice. The object of the law is to afford to a party, called upon
to give evidence in a proceeding
inter alios, protection
against being brought by means of his own evidence within the
penalties of the law. But it would be to convert a salutary
protection into a means of abuse if it were to be held that a mere
imaginary possibility of danger, however remote and improbable, was
sufficient to justify the withholding of evidence essential to the
ends of justice."
"Cockburn, C.J., in
Regina v. Boyes, 1 B. & S. 311,
330. . . ."
McCarthy v. Clancy, 110 Conn. 482, 488-489, 148 A. 551,
555.
The court carefully applied the above standard to each question
which the petitioner was asked. It dealt first with the question
whether he knew John Bergoti. The court said:
"Bergoti is nowhere described or in any way identified, either
as to his occupation, actual or reputed, or as to any criminal
record he may have had. . . . Malloy made no attempt even to
suggest to the court how an answer to the question, whether he knew
Bergoti could possibly incriminate him. . . . On this state of the
record, the question was proper, and Malloy's claim of privilege,
made without explanation, was correctly overruled. Malloy 'chose to
keep the door tightly closed, and to deny the court the smallest
glimpse of the danger he apprehended. He cannot then complain that
we see none.'
In re Pillo, 11 N.J. 8, 22,
93 A.2d
176. . . ."
150 Conn. at 226-227, 187 A.2d at 748.
The remaining questions are summarized in the majority's
opinion,
ante, p.
378 U. S. 12. All of them deal with the circumstances
surrounding the petitioner's conviction on a gambling charge in
1959. The court declined to decide
Page 378 U. S. 31
"whether, on their face and apart from any consideration of
Malloy's immunity from prosecution, the questions should or should
not have been answered in the light of his failure to give any hint
of explanation as to how answers to them could incriminate
him."
150 Conn. at 227, 187 A.2d at 748. The court considered the
State's claim that the petitioner's prior conviction was sufficient
to clothe him with immunity from prosecution for other crimes to
which the questions might pertain, but declined to rest its
decision on that basis.
Id. at 227-229, 187 A.2d at
748-749. The court concluded, however, that the running of the
statute of limitations on misdemeanors committed in 1959 and the
absence of any indication that Malloy had engaged in any crime
other than a misdemeanor removed all appearance of danger of
incrimination from the questions propounded concerning the
petitioner's activities in 1959. The court summarized this
conclusion as follows:
"In all this, Malloy confounds vague and improbable
possibilities of prosecution with reasonably appreciable ones.
Under claims like his, it would always be possible to work out some
finespun and improbable theory from which an outside chance of
prosecution could be envisioned. Such claims are not enough to
support a claim of privilege, at least where, as here, a witness
suggests no rational explanation of his fears of incrimination, and
the questions themselves, under all the circumstances, suggest
none."
Id. at 230-231, 187 A.2d at 750.
Peremptorily rejecting all of the careful analysis of the
Connecticut court, this Court creates its own "finespun and
improbable theory" about how these questions might have
incriminated the petitioner. With respect to his acquaintance with
Bergoti, this Court says only:
"In the context of the inquiry, it should have been apparent to
the referee that Bergoti was suspected
Page 378 U. S. 32
by the State to be involved in some way in the subject matter of
the investigation. An affirmative answer to the question might well
have either connected petitioner with a more recent crime or at
least have operated as a waiver of his privilege with reference to
his relationship with a possible criminal."
Ante, pp.
378 U. S.
13-14.
The other five questions, treated at length in the Connecticut
court's opinion, get equally short shrift from this Court; it takes
the majority, unfamiliar with Connecticut law and far removed from
the proceedings below, only a dozen lines to consider the questions
and conclude that they were incriminating:
"The interrogation was part of a wide-ranging inquiry into
crime, including gambling, in Hartford. It was admitted on behalf
of the State at oral argument -- and indeed it is obvious from the
questions themselves -- that the State desired to elicit from the
petitioner the identity of the person who ran the pool-selling
operation in connection with which he had been arrested in 1959. It
was apparent that petitioner might apprehend that, if this person
were still engaged in unlawful activity, disclosure of his name
might furnish a link in a chain of evidence sufficient to connect
the petitioner with a more recent crime for which he might still be
prosecuted."
(Footnote omitted.)
Ante, p.
378 U. S. 13.
I do not understand how anyone could read the opinion of the
Connecticut court and conclude that the state law which was the
basis of its decision or the decision itself was lacking in
fundamental fairness. The truth of the matter is that, under any
standard -- state or federal -- the commitment for contempt was
proper. Indeed, as indicated above, there is every reason to
believe that the Connecticut court did apply the
Hoffman
standard
Page 378 U. S. 33
quoted approvingly in the majority's opinion. I entirely agree
with my Brother WHITE,
post, pp.
378 U. S. 36-38,
that, if the matter is viewed only from the standpoint of the
federal standard, such standard was fully satisfied. The Court's
reference to a federal standard is, to put it bluntly, simply an
excuse for the Court to substitute its own superficial assessment
of the facts and state law for the careful and better informed
conclusions of the state court. No one who scans the two opinions
with an objective eye will, I think, reach any other
conclusion.
I would affirm.
[
Footnote 2/1]
That precise question has not heretofore been decided by this
Court.
Twining v. New Jersey, 211 U. S.
78, and the cases which followed it,
see infra,
p.
378 U. S. 17, all
involved issues not precisely similar. Although the Court has
stated broadly that an individual could "be required to incriminate
himself in . . . state proceedings,"
Cohen v. Hurley,
366 U. S. 117,
366 U. S. 127,
the context in which such statements were made was that the State
had in each case recognized the right to remain silent. In
Twining, supra, until now the primary authority, the Court
noted that
"all the States of the Union have, from time to time, with
varying form but uniform meaning, included the privilege in their
constitutions, except the States of New Jersey and Iowa, and in
those States it is held to be part of the existing law."
211 U.S. at
211 U. S.
92.
While I do not believe that the coerced confession cases furnish
any basis for incorporating the Fifth Amendment into the
Fourteenth,
see infra, pp.
378 U. S. 17-20,
they do, it seems to me, carry an implication that coercion to
incriminate oneself, even when under the forms of law,
cf.
Brown v. Mississippi, 297 U. S. 278,
297 U. S. 285,
discussed
infra, pp.
378 U. S. 17-18,
is inconsistent with due process. Since every State already
recognizes a privilege against self-incrimination so defined,
see VIII Wigmore, Evidence (McNaughton rev.1961), ยง 2252,
the effect of including such a privilege in due process is only to
create the possibility that a federal question, to be decided under
the Due Process Clause, would be raised by a State's refusal to
accept a claim of the privilege.
[
Footnote 2/2]
See 378 U.S.
1fn2/1|>note 1,
supra.
[
Footnote 2/3]
Nothing in the opinion in
Brown supports the Court's
intimation here,
ante, p.
378 U. S. 6, that,
if
Twining had not been on the books, reversal of the
convictions would have been based on the Fifth Amendment. The Court
made it plain in
Brown that it regarded the trial use of a
confession extracted by torture as on a par with domination of a
trial by a mob,
see, e.g., Moore v. Dempsey, 261 U. S.
86, where the trial "is a mere pretense," 297 U.S. at
297 U. S.
286.
[
Footnote 2/4]
"And so, when a conviction in a state court is properly here for
review under a claim that a right protected by the Fourteenth
Amendment has been denied, the question is not whether the record
can be found to disclose an infraction of one of the specific
provisions of the first eight amendments. To come concretely to the
present case, the question is not whether the record permits a
finding, by a tenuous process of psychological assumptions and
reasoning, that Malinski by means of a confession was forced to
self-incrimination in defiance of the Fifth Amendment. The exact
question is whether the criminal proceedings which resulted in his
conviction deprived him of the due process of law by which he was
constitutionally entitled to have his guilt determined."
Malinski, supra, at
324 U. S. 416
(opinion of Frankfurter, J.).
[
Footnote 2/5]
In
Adamson and
Palko, supra, which adhered to
the rule announced in
Twining, supra, the Court cited some
of the very cases now relied on by the majority to show that
Twining was gradually being eroded. 332 U.S. at
332 U. S. 54,
notes 12, 13; 302 U.S. at
302 U. S. 325,
326.
[
Footnote 2/6]
Cf. the majority and dissenting opinions in
Aguilar
v. Texas, post, p.
378 U. S. 108.
MR. JUSTICE WHITE, with whom MR. JUSTICE STEWART joins,
dissenting.
I
The Fifth Amendment safeguards an important complex of values,
but it is difficult for me to perceive how these values are served
by the Court's holding that the privilege was properly invoked in
this case. While purporting to apply the prevailing federal
standard of incrimination -- the same standard of incrimination
that the Connecticut courts applied -- the Court has all but stated
that a witness' invocation of the privilege to any question is to
be automatically, and without more, accepted. With deference, I
prefer the rule permitting the judge, rather than the witness to
determine when an answer sought is incriminating.
The established rule has been that the witness' claim of the
privilege is not final, for the privilege qualifies a citizen's
general duty of disclosure only when his answers would subject him
to danger from the criminal law. The privilege against
self-incrimination or any other evidentiary privilege does not
protect silence which is solely an expression of political protest,
a desire not to inform, a fear of social obloquy or economic
disadvantage or fear of prosecution for future crimes.
Smith v. United
States,
Page 378 U. S. 34
337 U. S. 137,
337 U. S. 147;
Brown v. Walker, 161 U. S. 591,
161 U. S. 605.
If the general duty to testify when subpoenaed is to remain, and
the privilege is to be retained as a protection against compelled
incriminating answers, the trial judge must be permitted to make a
meaningful determination of when answers tend to incriminate.
See The Queen v. Boyes, 1 B. & S. 311, 329-330 (1861);
Mason v. United States, 244 U. S. 362. I
do not think today's decision permits such a determination.
Answers which would furnish a lead to other evidence needed to
prosecute or convict a claimant of a crime -- clue evidence --
cannot be compelled, but "this protection must be confined to
instances where the witness has reasonable cause to apprehend
danger from a direct answer."
Hoffman v. United States,
341 U. S. 479, at
341 U. S. 486;
Mason v. United States, 244 U. S. 362. Of
course, the witness is not required to disclose so much of the
danger as to render his privilege nugatory. But that does not
justify a flat rule of no inquiry, and automatic acceptance of the
claim of privilege. In determining whether the witness has a
reasonable apprehension, the test in the federal courts has been
that the judge is to decide from the circumstances of the case, his
knowledge of matters surrounding the inquiry, and the nature of the
evidence which is demanded from the witness.
Hoffman v. United
States, 341 U. S. 479;
Mason v. United States, 244 U. S. 362.
Cf. Rogers v. United States, 340 U.
S. 367. This rule seeks and achieves a workable
accommodation between what are obviously important competing
interests. As Mr. Chief Justice Marshall said:
"The principle which entitles the United States to the testimony
of every citizen, and the principle by which every witness is
privileged not to accuse himself, can neither of them be entirely
disregarded. . . . When a question is propounded, it belongs to the
court to consider and to decide whether any direct answer to it can
implicate the witness."
In
Page 378 U. S. 35
re Willie, 25 Fed.Cas. No. 14,692e, at 39-40. I would
not only retain this rule, but apply it in its present form. Under
this test, Malloy's refusals to answer some, if not all, of the
questions put to him were clearly not privileged.
II
In November, 1959, Malloy was arrested in a gambling raid in
Hartford, and was convicted of pool selling, an offense defined as
occupying and keeping a building containing gambling apparatus.
After a 90-day jail term, his one-year sentence was suspended and
Malloy was placed on probation for two years. In early 1961, Malloy
was summoned to appear in an investigation into whether crimes,
including gambling, had been committed in Hartford County, and was
asked various questions obviously and solely designed to ascertain
who Malloy's associates were in connection with his pool-selling
activities in Hartford in 1959. Malloy initially refused to answer
virtually all the questions put to him, including such innocuous
ones as whether he was the William Malloy arrested and convicted of
pool selling in 1959. After he was advised to consult with counsel
and did so, he declined to answer each one of the following
questions on the ground that it would tend to incriminate him:
"Q. Now, on September 11, 1959, when you were arrested at 600
Asylum Street, and the same arrest for which you were convicted in
the Superior Court on November 5, 1959, for whom were you
working?"
"Q. On September 11, 1959, when you were arrested, and the same
arrest for which you were convicted in the Superior Court on
November 5, 1959, who furnished the money to pay your fine when you
were convicted in the Superior Court?"
"
* * * *"
Page 378 U. S. 36
"Q. After your arrest on September 11, 1959, and the same arrest
for which you were convicted on November 5, 1959, who selected your
bondsman?"
"
* * * *"
"Q. As a result of your arrest on September 11, 1959, and the
same arrest for which you were convicted on November 5, 1959, who
furnished the money to pay your fine?"
"
* * * *"
"Q. Do you know whose apartment it was [that you were arrested
in on September 11, 1959]?"
"
* * * *"
"
* * * *"
"Q. Do you know John Bergoti?"
"Q. I ask you again, Mr. Malloy, now, so there will be no
misunderstanding of what I want to know. When you were arrested on
September 11, 1959, at 600 Asylum Street in Hartford, and the same
arrest for which you were convicted in Superior Court on November
5, 1959, for whom were you working?"
It was for refusing to answer these questions that Malloy was
cited for contempt, the Connecticut courts noting that the
privilege does not protect one against informing on friends or
associates.
These were not wholly innocuous questions on their face, but
they clearly were in light of the finding, of which Malloy was
told, that he was immune from prosecution for any pool-selling
activities in 1959. As the Connecticut Supreme Court of Errors
found, the State bore its burden of proving that the statute of
limitations barred any prosecution for any type of violation of the
state pool-selling statute in 1959. Malloy advanced the claim
before the Connecticut courts, and again before this Court, that he
could perhaps be prosecuted for a conspiracy, and that the statute
of limitations on a felony was
Page 378 U. S. 37
five years. But the Connecticut courts were unable to find any
state statute which Malloy's gambling activities in 1959 in
Hartford, the subject of the inquiry, could have violated, and
Malloy has not yet pointed to one. Beyond this, Malloy declined to
offer any explanation or hint at how the answers sought could have
incriminated him. In these circumstances, it is wholly speculative
to find that the questions about others, not Malloy, posed a
substantial hazard of criminal prosecution to Malloy.
Theoretically, under some unknown but perhaps possible conditions,
any fact is potentially incriminating. But if this be the rule,
there obviously is no reason for the judge, rather than the
witness, to pass on the claim of privilege. The privilege becomes a
general one against answering distasteful questions.
The Court finds that the questions were incriminating because
petitioner
"might apprehend that, if [his associates in 1959] were still
engaged in unlawful activity, disclosure of [their names] might
furnish a link in a chain of evidence sufficient to connect the
petitioner with a more recent crime for which he might still be
prosecuted."
Ante, p.
378 U. S. 13. The
assumption necessary to the above reasoning is that all persons, or
all who have committed a misdemeanor, are continuously engaged in
crime. This is but another way of making the claim of privilege
automatic. It is not only unrealistic generally, but peculiarly
inappropriate in this case. Unlike cases relied on by the Court,
like
Hoffman v. United States, supra, where the claimant
was known to be involved in rackets in the area, which were the
subject of the inquiry, and had a "broadly published police
record," Malloy had no record as a felon. He had engaged once in an
unlawful activity -- pool selling -- a misdemeanor, and was given a
suspended sentence. He had been on probation since that time, and
was on probation at the time of the inquiry. Again, unlike
Hoffman, nothing in these questions indicates
petitioner
Page 378 U. S. 38
was called because he was suspected of criminal activities after
1959. There is no support at all in this record for the cynical
assumption that he had committed criminal acts after his release in
1960.
Even on the Court's assumption that persons convicted of a
misdemeanor are necessarily suspect criminals, sustaining the
privilege in these circumstances is unwarranted, for Malloy placed
no reliance on this theory in the courts below or in this Court. In
order to allow the judge passing on the claim to understand how the
answers sought are incriminating, I would at least require the
claimant to state his grounds for asserting the privilege to
questions seemingly irrelevant to any incriminating matters.
Adherence to the federal standard of incrimination stated in
Mason and
Hoffman, supra, in form only, while its
content is eroded in application, is hardly an auspicious beginning
for application of the privilege to the States. As was well stated
in a closely analogous situation,
"[t]o continue a rule which is honored by this Court only with
lip service is not a healthy thing, and, in the long run, will do
disservice to the federal system."
Gideon v. Wainwright, 372 U. S. 335, at
372 U. S. 351
(HARLAN, J., concurring).
I would affirm.