Twining v. New Jersey (Twining Self-Incrim, 1908)
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The Facts
Albert Twining and John Cornell were convicted in New Jersey state court of conspiracy to deceive a bank examiner. At trial, the defendants refused to testify, and the trial judge instructed the jury that their silence could be considered as tending to prove guilt. The defendants appealed, arguing that New Jersey's procedure violated the Fifth Amendment's protection against self-incrimination.
The Issue
Does the Fourteenth Amendment's Due Process Clause incorporate the Fifth Amendment's privilege against self-incrimination and apply it to the states? • Can a state permit adverse inferences from a defendant's failure to testify at trial without violating the Constitution?
The Rules
No State shall...deprive any person of life, liberty, or property, without due process of law.
No person...shall be compelled in any criminal case to be a witness against himself.
The Fourteenth Amendment does not incorporate all Bill of Rights protections; only fundamental rights essential to ordered liberty apply to the states.
The Application
The Court applied its non-incorporation principle to reject Twining and Cornell's constitutional challenge: because the Fifth Amendment's self-incrimination privilege was not fundamental to ordered liberty, New Jersey retained authority to permit adverse inferences from a defendant's trial silence. The trial judge's instruction that the jury could consider the defendants' refusal to testify as evidence of guilt did not violate the Fourteenth Amendment, even though identical instructions would offend the Fifth Amendment if imposed by federal courts. Under Twining's framework, states could compel incriminating testimony and penalize courtroom silence without violating federal constitutional guarantees. This holding left the defendants with no federal constitutional protection against New Jersey's procedure, despite the Fifth Amendment's protections for federal defendants.
The Conclusion
**The Court held 8-1 that the Fourteenth Amendment does not incorporate the Fifth Amendment's self-incrimination privilege, leaving states free to compel testimony and permit adverse inferences.** Justice Moody emphasized that only certain fundamental rights deemed essential to ordered liberty apply to the states. This decision established the selective incorporation doctrine, though the self-incrimination privilege itself was not incorporated until Duncan v. Louisiana (1968).
Case Analysis
Overview
The Court held that the Fourteenth Amendment does not incorporate the Fifth Amendment's self-incrimination protection against state action.
Facts
Albert Twining and John Cornell were convicted in New Jersey state court of conspiracy to deceive a bank examiner. At trial, the defendants refused to testify, and the trial judge instructed the jury that their silence could be considered as tending to prove guilt. The defendants appealed, arguing that New Jersey's procedure violated the Fifth Amendment's protection against self-incrimination.
Issue
Whether the Fifth Amendment's privilege against self-incrimination is incorporated against the states through the Fourteenth Amendment, and whether a state court may instruct a jury to draw adverse inferences from a defendant's refusal to testify at trial.
Rule
Twining v. New Jersey, 211 U.S. 78 (1908), held that the Fifth Amendment self-incrimination privilege is not fundamental to ordered liberty and therefore does not bind the states through the Fourteenth Amendment. Twining was substantially overruled by Malloy v. Hogan, 378 U.S. 1 (1964), which incorporated the Fifth Amendment against the states via the Due Process Clause. Griffin v. California, 380 U.S. 609 (1965), further held that a court's instruction permitting adverse inference from a defendant's failure to testify violates the Fifth Amendment.
Analysis
The Court applied its non-incorporation principle to reject Twining and Cornell's constitutional challenge: because the Fifth Amendment's self-incrimination privilege was not fundamental to ordered liberty, New Jersey retained authority to permit adverse inferences from a defendant's trial silence. The trial judge's instruction that the jury could consider the defendants' refusal to testify as evidence of guilt did not violate the Fourteenth Amendment, even though identical instructions would offend the Fifth Amendment if imposed by federal courts. Under Twining's framework, states could compel incriminating testimony and penalize courtroom silence without violating federal constitutional guarantees. This holding left the defendants with no federal constitutional protection against New Jersey's procedure, despite the Fifth Amendment's protections for federal defendants.
Conclusion
**The Court held 8-1 that the Fourteenth Amendment does not incorporate the Fifth Amendment's self-incrimination privilege, leaving states free to compel testimony and permit adverse inferences.** Justice Moody emphasized that only certain fundamental rights deemed essential to ordered liberty apply to the states. This decision established the selective incorporation doctrine, though the self-incrimination privilege itself was not incorporated until Duncan v. Louisiana (1968).
Notes
211 U.S. 78 (1908)
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