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

• 211 U.S. 78 (1908)
• Vote: 8–1
• For the Court: Moody
• Dissenting: Harlan

New Jersey charged Albert Twining with the crime of reporting false information to a state government bank examiner. Twining refused to testify at his state court trial, an action that the judge interpreted, in his charge to the jury, as an admission of guilt.

Under New Jersey law, the judge could make such an interpretation.

Twining was convicted and the New Jersey Supreme Court upheld the conviction. Twining, however, argued that he had a constitutional right to protection against giving evidence against himself. He pointed to the 5th Amendment to the U.S. Constitution, which says, “No person shall be… compelled in any criminal case to be a witness against himself.” Twining appealed to the U.S. Supreme Court.

The Issue

Did the New Jersey trial court judge's instructions to the jury violate the 5th Amendment guarantee of protection against self-incrimination? If so, could this part of the federal Bill of Rights be applied to a state government through the due process clause of the 14th Amendment, which says, “No state shall… deprive any person of life, liberty, or property, without due process of law?”

Opinion of the Court

Justice William H. Moody recognized that the trial judge violated the self-incrimination clause of the 5th Amendment. However, he upheld the conviction of Twining because, in the Supreme Court's view, the self-incrimination clause in the federal Bill of Rights could not be applied to a state government via the due process clause of the 14th Amendment. However, the Court stated that this due process clause could in principle incorporate some fundamental rights in the federal Bill of Rights, if these rights were judged essential to the idea of fairness in due process of law. Justice Moody provided this guideline for future decisions about which rights could be incorporated and applied to state governments: “Is it [the right in question] a fundamental principle of liberty and justice which inheres in the very idea of free government and is the inalienable right of a citizen of such a government?”

The Court decided that the 5th Amendment's self-incrimination clause was not one of the “fundamental principles” of the federal Bill of Rights that could be applied to state governments through the 14th Amendment. But Justice Moody's guidelines did open the way for future applications to the states of selected rights in the federal Bill of Rights.

Dissent

Justice John Marshall Harlan concluded that the 5th Amendment's self-incrimination clause did apply to the states through the 14th Amendment. In his opinion, this right to remain silent was a fundamental part of the principle of liberty embedded in the Constitution.

Significance

The Supreme Court rejected total incorporation–the idea that Amendments 1 to 8 of the federal Bill of Rights could be completely applied to the states through the due process clause of the 14th Amendment. However, the Court did provide an opening for selective incorporation–the idea that certain parts of the federal Bill of Rights could be applied to the states on a case-by-case basis. During the 20th century, the Court has selectively incorporated most provisions of the federal Bill of Rights through the due process clause of the 14th Amendment, thereby applying these fundamental rights to the states.

See also Incorporation doctrine; Rights of the accused; Self-incrimination, privilege against

Twining v. New Jersey
Supreme Court of the United States
Argued March 19–20, 1908 Decided November 9, 1908
Full case name	Albert C. Twining and David C. Cornell, plaintiffs in error v. State of New Jersey
Citations	211 U.S. 78 (more) 211 U.S. 78
Holding
The Fifth Amendment rights to not self incriminate apply only to federal court cases.
Court membership
Chief Justice Melville Fuller Associate Justices John M. Harlan · David J. Brewer Edward D. White · Rufus W. Peckham Joseph McKenna · Oliver W. Holmes, Jr. William R. Day · William H. Moody
Case opinions
Majority	Moody, joined by Fuller, Brewer, White, Peckham, McKenna, Holmes, Day
Dissent	Harlan
Overruled by
Malloy v. Hogan, 378 U.S. 1 (1964)

Twining v. New Jersey, 211 U.S. 78 (1908), was a 1908 U.S. Supreme Court case. The case involved two men charged with fraud in New Jersey who claimed 5th Amendment protection and refused to testify during their trial. The jury was told of the men's failure to testify, and the men were convicted. They appealed, arguing that the instructions to the jury violated their 5th Amendment privilege to not incriminate themselves.

The Supreme Court used the case to decide if the 5th Amendment right was valid during trials by state courts and not just federal courts. Before the adoption of the 14th Amendment, the Bill of Rights, including the 5th Amendment, did not apply to state courts. The court cited the decision in the Slaughter-house cases that the language in the 14th Amendment, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...", did not curtail state power. The Supreme Court voted 8 to 1 that the 5th Amendment rights to not self incriminate applied only to federal court cases.

The Court did not reach the question of whether the defendants' Fifth Amendment rights were actually violated in the original trial.

John Marshall Harlan was the lone dissenter, writing firstly that the Court should have first decided whether the defendants' rights were actually violated before reaching the "question of vast moment, one of such transcendent importance" of whether the Fifth Amendment applied to State courts; and secondly that the Fifth Amendment did apply to State courts through the Due Process Clause of the Fourteenth Amendment.

Harlan's dissent was endorsed by the majority of the Court when it overruled Twining in 1964 in Malloy v. Hogan.

Further reading

• Twining v. New Jersey on FindLaw
• Brennan, William J. (1961). "The Bill of Rights and the States". NYU Law Review 36: 761. 

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