MALLOY v. HOGAN 378 U.S. 1 (1964)

This is one of a series of cases in which the warren court nationalized the rights of the criminally accused by incorporating provisions of the Fourth through the Eighth Amendments into the fourteenth amendment. (See incorporation doctrine.) In Malloy it was the right against self-incrimination. Malloy, a convicted felon on probation, was ordered to testify in a judicial inquiry into gambling activities. He refused to answer any questions concerning the crime for which he had been convicted, and he was held in contempt. Connecticut's highest court, relying on twining v. new jersey (1908) and Adamson v. California (1947), ruled that Malloy's invocation of the Fifth Amendment right had no constitutional basis in the state and that the Fourteenth Amendment did not extend the right to a state proceeding.

The Supreme Court reversed on the ground that the "same standards must determine whether an accused's silence in either a federal or a state proceeding is justified." Had the inquiry been a federal one, said Justice william j. brennan for a 5–4 majority, Malloy would have been entitled to refuse to answer because his disclosures might have furnished a link in a chain of evidence to connect him to a new crime for which he might be prosecuted. The Court held that "the Fifth Amendment exception from compulsory self-incrimination is also protected by the Fourteenth against abridgment by the States." Twining and Adamson, which had held to the contrary, were overruled, although the specific holding in Adamson relating to comments on the accused's failure to testify was not overruled until griffin v. california (1965). Thus, Malloy stands for the doctrine that the Fourteenth Amendment protects against state abridgment the same right that the Fifth protects against federal abridgment. Justices byron r. white and potter stewart did not expressly dissent from this doctrine; they contended, rather, that Malloy's reliance on his right to silence was groundless on the basis of the facts. Justices john marshall harlan and tom c. clark opposed the incorporation of the Fifth Amendment right into the Fourteenth.

Leonard W. Levy
(1986)