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The Oxford Companion to the Supreme Court of the United States, 2nd Edition edited by Hall, Kermit L (23rd June 2005)

M, Malloy v. Hogan,

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved. Subscriber: null; date: 04 July 2020

Malloy v. Hogan,

378 U.S. 1 (1964), argued 5 Mar. 1964, decided 15 June 1964 by vote of 5 to 4; Brennan for the Court, Harlan, Clark, Stewart, and White in dissent. Malloy pleaded guilty to taking part in an unlawful gambling operation. Connecticut’s Superior Court sentenced him to a year in jail, but after ninety days his prison term (p. 603) was suspended and he was placed on probation for two years. While on probation he was called to testify in a state inquiry into gambling and other crimes. He refused to answer questions relating to his earlier arrest and conviction, citing his *Fifth Amendment privilege against self-incrimination. Adjudged in contempt he was imprisoned until he was willing to answer. The Supreme Court agreed to review the case after *state courts had denied the defendant’s application for a writ of *habeas corpus on federal constitutional grounds.

The Fifth Amendment provides that “no person shall be compelled in any criminal case to be a witness against himself.” The privilege was designed originally to protect the individual against the federal government. For decades the Supreme Court refused to impose it on the states. The Court had long adhered to the view that the Due Process Clause of the *Fourteenth Amendment, which binds the states, requires only *fundamental fairness—meaning the avoidance of cruel or arbitrary procedures—and that a state could try persons fairly and justly without according them a privilege sanctioned by little more than age and tradition.

Malloy’s significance lies in the Court’s sudden rejection of this older view; seven justices held that the states, through the Fourteenth Amendment, were indeed now bound by the Fifth Amendment’s privilege against self-incrimination. Malloy thus effectively overruled *Twining v. New Jersey (1908) and *Adamson v. California (1947), cases seemingly reinforced as late as 1961 by Cohen v. Hurley. In these cases a prosecutor’s comment on the failure of an accused to testify in a state proceeding was allowed to stand. The Court was unwilling to require the states to follow the harsh “no comment” rule it had derived from the Fifth Amendment privilege. But now, after Malloy, if a person invokes the privilege, all the Fifth Amendment standards that apply in a federal proceeding apply to the states.

This “incorporation” of the Self-Incrimination Clause of the Fifth Amendment into the Fourteenth was foreshadowed by the Court’s increasing resolve to overturn state convictions based on confessions elicited by improper methods of influence. The time had come, the Court said, to recognize “that the American system of criminal prosecution is accusatorial, not inquisitorial, and that the Fifth Amendment privilege is its essential mainstay” (p. 7). The Court thus vindicated the right of a witness to remain silent. Unless a person freely chooses to testify, the entire burden of producing evidence to establish guilt shifts to the government.

Justices John M. *Harlan and Tom *Clark, dissenting, rejected the Court’s decision to bind the states to the Fifth Amendment’s self-incrimination clause. They would have adhered to the rationale of Twining and Adamson under which state practices were to be judged in terms of basic principles of justice implicit in the Fourteenth Amendment’s Due Process Clause, apart from and independent of the specific—and historically determined—privileges and safeguards laid down in the *Bill of Rights. In their view, the Due Process Clause is in its own right an exacting standard of justice whose meaning can and should be derived from accepted and evolving notions of decency in a civilized society. They argued that a discriminatory approach of this kind, which allows the states a good measure of flexibility in meeting the problems of local law enforcement, contributes “to the sound working of our federal system in the field of criminal law” (p. 27).

Justices Byron *White and Potter *Stewart concurred with the majority’s view that the Fourteenth Amendment incorporated the privilege against self-incrimination. They dissented, however, because in their view the facts of the case did not warrant the application of the privilege. Given the inquiry’s focus and the nature of the questions asked they felt that the defendant was in no danger of incriminating himself.

See also fifth amendment; incorporation doctrine; self-incrimination.

Donald P. Kommers