Application to the States

Application to the States

The Fifth Amendment, like the rest of the original Bill of Rights, was written to restrain the national government, and that origin leaves open whether the privilege follows a person into a state interrogation room or a state courtroom. The question carried high stakes because most criminal investigations and prosecutions are conducted by state and local officers.¹ Until 1964 the Court's answer was that a state could dispense with the privilege and still satisfy the Fourteenth Amendment. This section follows how that answer wore away through the coerced-confession cases and was repudiated in Malloy v. Hogan, which holds that the Fourteenth Amendment secures against the states the same privilege the Fifth Amendment guarantees against the federal government.²

The older answer grew out of the debate over incorporation, which asks whether a guarantee that the Bill of Rights places on the federal government also binds the states because it is part of the liberty protected by the Fourteenth Amendment's Due Process Clause. In Twining v. New Jersey (1908) the Court first took up that question expressly, and it reasoned that a listed right restrains the states only if denying it would itself deny due process, which depends on the nature of the right and not on its appearing among the first eight Amendments.³ The Court then asked whether freedom from compelled self-incrimination is a fundamental principle of liberty and justice that inheres in the very idea of free government. It concluded that the privilege, however salutary, could not be ranked with the right to a hearing before condemnation.⁴ The case itself arose from a state trial in which the jury could be told to draw an adverse inference from the defendant's silence, so from the start the question whether the privilege bound the states was tied to the question whether silence could be held against the accused.⁵

Justice Cardozo built on that reasoning in Palko v. Connecticut, a double-jeopardy case in which the defendant argued that whatever the Fifth Amendment forbids the federal government to do, the Fourteenth forbids a state to do. Cardozo rejected the argument, and in sorting the guarantees the Court had applied to the states from those it had not, he placed the protection against self-incrimination on the unapplied side alongside grand jury indictment.⁶ The dividing line was whether a right is “of the very essence of a scheme of ordered liberty,” and of the immunity from compulsory self-incrimination the opinion said, “This too might be lost, and justice still be done.”⁷ The opinion added that some students of the penal system regarded the immunity as a mischief rather than a benefit, and it recorded the Court's earlier rule that in a state prosecution the exemption fails if the state elects to end it.⁸ The theory was that a fair system of justice could exist without the privilege, so a state's decision to curtail it was a policy choice and carried no constitutional wrong.

The next step carried the same view from witnesses to defendants. In Adamson v. California (1947), California law allowed the court and prosecutor to comment on a defendant's failure to explain or deny the evidence against him and allowed the jury to consider that failure, and the Court held that the Fourteenth Amendment did not make the Fifth Amendment's protection against compelled testimony effective against the states.⁹ Its premise was that the Bill of Rights was adopted to protect individuals against the federal government, so a state's requiring testimony from an accused was not necessarily a breach of its duty to give a fair trial.¹⁰ Due process was not silent about state compulsion even then, since it forbade forcing testimony by fear of hurt, torture, or exhaustion.¹¹ The old regime therefore offered a floor against brutality with no privilege above it, and that floor is where the doctrine began to change. As late as 1961, Justice Harlan's dissent in Mapp v. Ohio described the inapplicability of the privilege to the states as long-established doctrine that the Court had only recently reiterated in Cohen v. Hurley.¹²

The change came through the confession cases, which the Court decided under due process while insisting that the privilege was not involved. In Brown v. Mississippi (1936), officers had repeatedly beaten and whipped suspects until they confessed.¹³ Brown was the first case to hold that due process bars a state from using a coerced confession against the accused, and the Court took care to say that this did not involve the privilege, remarking that compulsion by torture to extort a confession “is a different matter.”¹⁴ That distinction was soon abandoned. The Court came to test a state confession by the standard federal courts had applied since Bram v. United States (1897), which treats the voluntariness of a confession as controlled by the Fifth Amendment's command that no person be compelled to be a witness against himself.¹⁵

Under that standard the inquiry is not whether the officers' conduct was shocking but whether the confession was free and voluntary, meaning that it was not extracted by threats or violence and not obtained by any direct or implied promise, however slight.¹⁶ Applied to the states, the standard excluded even a confession secured by so mild a pressure as refusing to let a suspect telephone his wife until he confessed.¹⁷ The Court's vocabulary shifted with it, and it began to speak of the accused's “free choice to admit, to deny, or to refuse to answer.”¹⁸ By the time Malloy arrived, the Court was already measuring state confessions against a Fifth Amendment test, and the claim that the privilege lay outside the Fourteenth Amendment had become hard to square with what the Court was doing. Malloy itself was not a confession case, and the Court relied on the confession line to reach its result.¹⁹

The facts in Malloy are simple. Harold Malloy was arrested in a 1959 gambling raid in Hartford, Connecticut, and was convicted of a misdemeanor on his guilty plea.²⁰ About sixteen months later he was subpoenaed to appear before a referee appointed by the Superior Court to investigate gambling and other criminal activity in the county, where he was questioned about the circumstances of his arrest, including who employed him and who paid his fine and bondsman. He refused to answer any question, asserting that the answers might incriminate him. The court ordered him to testify, and when he again refused it held him in contempt and committed him to prison until he answered. The Connecticut Supreme Court of Errors affirmed, holding the Fifth Amendment privilege unavailable in a state proceeding, and Malloy was released on his own recognizance after eleven days in jail and sought federal habeas corpus relief.²¹

The Supreme Court treated the case as a collision between two lines of its own decisions. One line, represented by Brown v. Walker and Twining, held the privilege unincorporated, while the other, represented by Counselman v. Hitchcock and Adams v. Maryland, insisted that immunity statutes give protection coextensive with the privilege.²² The Court resolved the conflict by holding that the Fifth Amendment's exemption from compulsory self-incrimination is protected by the Fourteenth Amendment against abridgment by the states, so that the Fourteenth secures against state invasion the same privilege the Fifth guarantees against federal infringement.²³ The reasoning had two parts. The confession cases had already shown that the Fourteenth Amendment forbids a state to induce a confession through “sympathy falsely aroused” or other inducement far short of torture, and it followed all the more that a state could not use imprisonment to force a person to answer questions that might incriminate him.²⁴ The harm is the same in both settings, because a person pushed by a contempt order has been made to prove the charge out of his own mouth just as surely as a suspect worn down in an interrogation room, and the heavier pressure cannot be allowed where the lighter one is forbidden.

The second part of the reasoning drew on Mapp v. Ohio, which had returned to the older view that the privilege is one of the principles of a free government and had thereby rejected Twining's picture of it as a rule of evidence defended as “a law proved by experience to be expedient.”²⁵ The premise that unites both parts is that the American system of prosecution is accusatorial, so governments, state and federal, must establish guilt by evidence independently and freely secured and may not coerce proof of a charge from the accused's own mouth.²⁶ That premise does not change with the sovereign. If a state could jail a witness whom the federal government could not, a person's protection against self-accusation would depend on which government happened to be asking, even though both may pursue the same conduct.

The practical consequence is that the content of the privilege no longer varies with the prosecuting government. In the Court's words, “the same standards must determine whether an accused's silence in either a federal or state proceeding is justified.”²⁷ A state witness therefore invokes the Fifth Amendment privilege itself, and the privilege is no longer a state-law analogue that a legislature may revise. Later opinions treated the point as settled: two years after Malloy, the Court described Twining as having been succeeded by it,²⁸ and a Justice who had dissented in Malloy later wrote that he considered himself bound by its holding on self-incrimination.²⁹ Incorporation sets a minimum, and states remain free to grant broader protection, including through their own constitutions.³⁰

Move the same two witnesses back before 1964 and the second one loses. Under the Twining and Palko view that witness would have had no federal privilege to invoke, and that is exactly what Connecticut's highest court held against Malloy.³¹ The pre-1964 position is now history. A student who answers a state-proceeding problem by saying that a state may abolish the privilege is reciting a rule the Court repudiated in 1964.³² The specific holding of Adamson fell a year after Malloy, when the Court struck down California's rule permitting comment on a defendant's failure to testify in Griffin v. California, the case taken up in a later section, which was decided against this incorporation backdrop.³³