378 U.S. 1 (1964)
In November 1959, Harold Malloy was arrested during a gambling raid in Hartford, Connecticut, on charges related to pool selling.1 He pleaded guilty to the misdemeanor, receiving a sentence of one year in jail and a five-hundred-dollar fine, with the jail term suspended after ninety days followed by two years of probation.2
Approximately sixteen months later, Malloy was subpoenaed to appear before a referee appointed by the Superior Court of Hartford County to investigate alleged gambling and other criminal activities in the county.3 During the inquiry, he was questioned about the circumstances of his 1959 arrest and conviction, including the identity of his employer, who paid his fine and bondsman, the tenant of the apartment where he was arrested, and whether he knew a man named John Bergoti.4 Malloy refused to answer any of these questions, asserting that his responses might tend to incriminate him.5
The Superior Court adjudged Malloy in contempt and ordered him committed to prison until he answered the questions.6 The Connecticut Supreme Court of Errors affirmed the contempt adjudication, holding that the Fifth Amendment privilege was unavailable in state proceedings and that Malloy had not properly invoked the state constitutional privilege.7 Malloy then sought federal habeas corpus relief in the United States District Court for the District of Connecticut, which was denied, and the Court of Appeals for the Second Circuit affirmed the dismissal.8
The Supreme Court granted certiorari to consider the constitutional questions presented.9
Whether the Fourteenth Amendment makes the Fifth Amendment's protection against compulsory self-incrimination applicable to the States?10
The Due Process Clause of the Fourteenth Amendment incorporates fundamental rights from the Bill of Rights, including the Fifth Amendment privilege against compulsory self-incrimination, and applies the same standards to state proceedings as to federal proceedings.11
Yes. The Court has incorporated other Bill of Rights protections such as the Fourth Amendment exclusionary rule in Mapp v. Ohio and the Sixth Amendment right to counsel in Gideon v. Wainwright, overruling contrary precedents like Twining v. New Jersey and Adamson v. California.12 In this case Malloy was arrested in a 1959 gambling raid, pleaded guilty to pool selling, and later refused to answer questions before a state referee investigating gambling activities, leading to a contempt adjudication by the Connecticut Superior Court that was affirmed by the state Supreme Court of Errors.13 The federal habeas petition was denied below, but the incorporation holding requires reversal because the state compulsion to testify or face imprisonment violates the now-applicable Fifth Amendment privilege.14
The Fourteenth Amendment makes the Fifth Amendment's protection against compulsory self-incrimination applicable to the States.15
Related opinions on this issue
Joined by Justice Clark
Justice Harlan dissented on the ground that Twining and Adamson were correctly decided and should not be overruled.16 He maintained that the privilege against self-incrimination is not a fundamental right within the meaning of the Fourteenth Amendment.17 States should remain free to develop their own rules of evidence and procedure without automatic incorporation of federal doctrine.18
Harlan argued that the Due Process Clause requires only fundamental fairness rather than transplantation of the entire body of federal self-incrimination law.19 He would have affirmed the judgment below.20
Whether the Connecticut immunity statute provides protection coextensive with the Fifth Amendment privilege?21
An immunity statute must afford protection coextensive with the Fifth Amendment privilege by barring not only direct use of compelled testimony but also its use to obtain other evidence against the witness; otherwise the statute is not a sufficient substitute for the privilege.22
No. The Connecticut statute provided only that answers before the investigating committee could not be used in any criminal proceeding against the witness except for perjury, but it left the witness subject to the possibility that the testimony could be used to discover other evidence.23 This is the precise defect identified in Counselman v. Hitchcock, where a similar federal statute was held insufficient. Malloy's refusal occurred during a wide-ranging inquiry into gambling in Hartford County after his 1959 conviction, and the statute's limited protection did not prevent the state from using his answers to search out additional incriminating evidence, rendering the compulsion unconstitutional under the incorporated privilege.24
The Connecticut immunity statute does not provide protection coextensive with the Fifth Amendment privilege.25
Whether the questions posed to the petitioner would tend to incriminate him under the federal standard?26
Under the federal standard a witness may invoke the privilege if it is evident from the implications of the question in the setting in which it is asked that a responsive answer might furnish a link in the chain of evidence needed to prosecute the witness, and the judge must be perfectly clear that the answer cannot possibly have such tendency.27
Yes. The questions asked Malloy about his 1959 arrest circumstances, including for whom he worked, who paid his fine and bondsman, the apartment tenant, and whether he knew John Bergoti, were posed during a broad state investigation into ongoing gambling activities.28 Malloy had been convicted of pool selling and was on probation at the time of the inquiry.29 It was apparent that the state sought the identity of the person running the operation, and an answer could have connected Malloy to more recent criminal activity or operated as a waiver of the privilege.30
The Connecticut Supreme Court of Errors erred by applying a narrower state-law view that ignored the Hoffman v. United States standard requiring only a reasonable apprehension of danger from the implications of the questions.31
The questions posed to the petitioner would tend to incriminate him under the federal standard.32
Related opinions on this issue
Joined by Justice Stewart
Justice White dissented for the reasons stated in his separate opinion in Murphy v. Waterfront Commission.33 He argued that the Connecticut statute provided complete immunity from use of the testimony in any criminal proceeding and that this was sufficient to supplant the privilege.34 White maintained that the federal standard of incrimination was not satisfied here because the questions were innocuous in light of the statute of limitations and Malloy's prior conviction.35
He would have affirmed the judgment because the state courts correctly determined that no real and appreciable danger of incrimination existed.36