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[Cite as Malloy v. Hogan, 378 U.S. 1, 4 n.2 (1964). NOTE: This decision concerns self-incrimination and whether the Fifth Amendment operated against state infringments. The Court incorporated the Fifth Amendment's protection under the 14th Amendment against state infringment. The majority opinion noted that "The extent to which the Fourteenth Amendment prevents state invasion of rights enumerated in the first eight Amendments has been considered in numerous cases." The Court noted that, "Although many Justices have deemed the Amendment to incorporate all eight of the amendments," in a footnote refered to the Second Amendment within a list of individual rights representing "[d]ecisions that particular guarantees were not safeguarded against state action by the Privileges and Immunities Clause or other provision of the Fourteenth Amendment are Presser v. Illinois, 116 U.S. 252, 265 (Second Amendment)...." (P. 4 n.2).]



No. 110. Argued March 5, 1964.--Decided June 15, 1964.

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. 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. 11.

3. The privilege is available to a witness in a statutory inquiry as well as to a defendant in a criminal prosecution. P. 11.(p.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. 11-14.

150 Conn. 220, 187 A.2d 744, reversed.

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.[2.1](p.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.

[Currently at pages 1-3 (Majority opinion).
Proceed to page 4 (Majority opinion cont.).
Proceed to pages 5-13 (Majority opinion cont.).
Proceed to pages 14-38 (Harlan dissent; White dissent.).]

[2.1] 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, 127-129; Snyder v. Massachusetts, 291 U.S. 97, 105.