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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)

T, Twining v. New Jersey,

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 June 2020

Twining v. New Jersey,

211 U.S. 78 (1908), argued 19–20 Mar. 1908, decided 9 Nov. 1908 by vote of 8 to 1; Moody for the Court, Harlan in dissent. Twining and Cornell were convicted of intentionally deceiving a New Jersey state banking examiner. At issue in their appeal was the trial judge’s charge to the jury that the defendant’s refusal to testify in their own behalf could be considered in determining guilt. New Jersey was among a minority of states that permitted trial judges to make such charges.

The Supreme Court weighed whether the trial judge’s instructions violated the *Fifth Amendment privilege against *self-incrimination and, if so, whether that provision was incorporated by the *Fourteenth Amendment against *state action. Justice William H. *Moody, writing for the majority, rejected the incorporation argument and declined to consider the specific dimensions of Twining’s complaint. Moody acknowledged that, for purposes of discussion, the trial court’s comment on the defendants’ refusal to take the stand in their own defense constituted an “infringement of the privilege against self-incrimination” (p. 114), but he emphasized that the New Jersey courts did not violate their own interpretation of that privilege and, consequently, the “exemption from compulsory self-incrimination in the courts of the States is not secured by any part of the Federal Constitution” (p. 114).

In dissent, Justice John Marshall *Harlan argued that the Court should first have considered whether the trial court’s action constituted a violation of the privilege against self-incrimination. If so, then the Court had to consider the applicability of federal constitutional provisions to the states. Harlan concluded that the trial court violated the privilege against self-incrimination and that that privilege applied to all citizens as guaranteed by the Fourteenth Amendment.

Although the Court has never explicitly contested Twining’s rejection of total incorporation, the process of selective incorporation has been applied to most of the *Bill of Rights. Twining v. New Jersey was reversed in *Malloy v. Hogan (1964).

See also incorporation doctrine.

Susette M. Talarico