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Full Opinion
MALLOY
v.
HOGAN, SHERIFF.
Supreme Court of United States.
*2 Harold Strauch argued the cause and filed a brief for petitioner.
John D. LaBelle, State's Attorney for Connecticut, argued the cause for respondent. With him on the brief were George D. Stoughton and Harry W. Hultgren, Jr., Assistant State's Attorneys.
Melvin L. Wulf filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal.
Briefs of amici curiae, urging affirmance, were filed by Stanley Mosk, Attorney General of California, William E. James, Assistant Attorney General, and Gordon Ringer, Deputy Attorney General, for the State of California; and by Frank S. Hogan, Edward S. Silver, H. Richard Uviller, Michael R. Juviler, Aaron E. Koota and Irving P. Seidman for the National District Attorneys' Association.
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.[1]
*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.
*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,[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.[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 *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 99.
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. v. Cheek, 259 U. S. 530, 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.[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 324, the statement of the Court in 1914 in Weeks v. United States, 232 U. S. 383, 398, that "the Fourth Amendment is not directed to individual misconduct of [state] officials." In 1961, however, the *6 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. 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, 471; cf. Powell v. Alabama, 287 U. S. 45, 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.[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 285. But this distinction was soon *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 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 542-543; see also Hardy v. United States, 186 U. S. 224, 229; Wan v. United States, 266 U. S. 1, 14; Smith v. United States, 348 U. S. 147, 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 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, *8 541. 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 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 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 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 *9 the condemnation of [those Amendments] . . . ." At 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, 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 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 632,[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 113.
The respondent Sheriff concedes in his brief that under our decisions, particularly those involving coerced *10 confessions, "the accusatorial system has become a fundamental part of the fabric of our society and, hence, is enforceable against the States."[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 *11 guarantees of the Bill of Rights, "Ohio ex rel. Eaton v. Price, 364 U. S. 263, 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. 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 *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 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 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 *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.[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 *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 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, 345.
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 *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 re-examination 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.[1] I do not understand, however, *16 how this process of re-examination, 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 *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. 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 114. Snyder v. Massachusetts, 291 U. S. 97, 105; Brown v. Mississippi, 297 U. S. 278, 285; Palko v. Connecticut, 302 U. S. 319, 324; Adamson v. California, 332 U. S. 46; Knapp v. Schweitzer, 357 U. S. 371, 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,[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 *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."[3] 297 U. S., at 285. (Emphasis supplied.)
The majority is simply wrong when it asserts that this perfectly understandable distinction "was soon abandoned," ante, pp. 6-7. In none of the cases cited, ante, pp. 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 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 150, note 5, and "secret inquisitorial practices," *19 id., at 152. Malinski v. New York, 324 U. S. 401, is the same; the privilege against self-incrimination is not mentioned.[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 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. 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 54 *20 (footnotes omitted). Plainly, the Court regarded these two lines of cases as distinct. See also Palko v. Connecticut, supra, at 326, to the same effect.[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, 28, may not be used in a state criminal trial furnishes no "fortification," see ante, p. 8, for today's decision. The very passage from the Mapp opinion which the Court quotes, ante, p. 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' *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, 543-544 (1897)." 367 U. S., at 656-657 (footnote omitted). See also id., at 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. 8, that the Fift