211 U.S. 78 (1908)
The plaintiff in error was indicted by the grand jury of Monmouth County, New Jersey, for the crime of having exhibited a false paper to the auditor of the township of Neptune, with intent to defraud the township.1 The indictment was of the second degree, setting forth in two counts the same offense in different language. The plaintiff in error was arraigned and pleaded not guilty.2
At the trial he was a witness in his own behalf. He was asked on cross-examination, and in the hearing of the jury, whether he had been convicted of any offense. To this question he made no reply.3 The judge instructed the jury that they might draw an inference of guilt from his silence.4
The plaintiff in error was convicted, and the judgment of conviction was affirmed by the Court of Errors and Appeals.5 After the judgment of the highest court of the State had been entered, the case was brought here by writ of error.6 It is assumed, in respect of each of the two defendants, that the jury were instructed that they might draw an unfavorable inference against him from his failure to testify, where it was within his power, in denial of the evidence which tended to incriminate him.7
Whether the Fourteenth Amendment forbids a State to compel a person accused of crime to be a witness against himself?8
No. The Court determined that the privileges and immunities protected by the Fourteenth Amendment are only those arising from the nature of the national government and secured by the Constitution, and the self-incrimination exemption does not qualify.11 The Court further held that due process incorporates only those principles fundamental to liberty and justice that inhere in free government, and historical review showed the exemption developed as a rule of evidence separate from due process.12 The plaintiff in error was indicted by the grand jury of Monmouth County, New Jersey, for exhibiting a false paper to the township auditor with intent to defraud.13 He pleaded not guilty, took the stand in his own behalf, remained silent when asked on cross-examination whether he had been convicted of any offense, and the judge instructed the jury that it could draw an inference of guilt from that silence.14
The resulting conviction and affirmance by the Court of Errors and Appeals therefore did not violate the Fourteenth Amendment.15
The Fourteenth Amendment does not forbid a State to compel a person accused of crime to be a witness against himself.
Related opinions on this issue
Justice Harlan dissented on the ground that the Fourteenth Amendment protects the privilege against self-incrimination from state abridgment through both the Privileges or Immunities Clause and the Due Process Clause.16 He reasoned that the privilege was universally recognized at common law and secured by the Fifth Amendment as a fundamental safeguard of liberty that the framers of the Fourteenth Amendment intended to extend against the states.17 Harlan argued that the privilege was a birthright carried from England to the colonies and enshrined in state constitutions, making it an immunity of national citizenship.18
He concluded that the majority's holding would permit states to compel self-incrimination in violation of the Constitution, contrary to the principles of free government.19
Whether the law of New Jersey, as declared by its highest court, did compel the plaintiff in error to be a witness against himself?20
No. The New Jersey statute provides that a defendant may testify at his own request and, when he does so, becomes subject to the same rules as other witnesses, including cross-examination on collateral matters affecting credibility.23 The highest court of the State construed the statute to allow the jury to draw an inference from a defendant's refusal to answer a proper question about prior convictions.24 The plaintiff in error elected to testify, was asked on cross-examination whether he had been convicted of any offense, gave no reply, and the jury was instructed that it could infer guilt from his silence.25 Because the defendant voluntarily took the stand, the procedure did not constitute compulsion by the State.26
The law of New Jersey, as declared by its highest court, did not compel the plaintiff in error to be a witness against himself.27
Whether the exemption from compulsory self-incrimination is a privilege or immunity of citizens of the United States within the meaning of the Fourteenth Amendment?28
No. The Court applied the distinction between state and national citizenship established in the Slaughter-House Cases.31 It held that privileges and immunities of national citizenship are limited to those flowing from the relationship between the citizen and the federal government.32 Rights such as trial by jury in civil cases and the right to bear arms have been held not to be national privileges or immunities.33 The same reasoning applies to the self-incrimination exemption.34
The plaintiff in error therefore could not invoke the Privileges or Immunities Clause to challenge the New Jersey procedure that allowed the jury to draw an inference from his silence after he chose to testify.35
The exemption from compulsory self-incrimination is not a privilege or immunity of citizens of the United States within the meaning of the Fourteenth Amendment.36
Related opinions on this issue
Justice Harlan maintained that the privilege against self-incrimination is a privilege or immunity of national citizenship protected by the Fourteenth Amendment.37 He argued that the Fifth Amendment placed the privilege beyond federal impairment and that the Fourteenth Amendment extended the same protection against the states, consistent with the fundamental character of the right in Anglo-American liberty.38 Harlan emphasized that the privilege was a birthright of English subjects carried to the colonies and secured in state constitutions before the federal Bill of Rights.39
Whether the exemption from compulsory self-incrimination is protected against state action by the Due Process Clause of the Fourteenth Amendment?40
No. The Court examined the historical origins of due process, tracing the phrase to Magna Carta and English common law, and found that compulsory self-incrimination was practiced for centuries after Magna Carta and was treated as a separate rule of evidence rather than an indispensable element of due process.43 The Court further observed that the privilege was omitted from several early declarations of rights and was added to state constitutions separately from due-process provisions.44 The New Jersey rule permitting an adverse inference from a testifying defendant's silence therefore did not deny due process of law to the plaintiff in error, who had been indicted for fraud, elected to testify, and remained silent on cross-examination about prior convictions.45
The exemption from compulsory self-incrimination is not protected against state action by the Due Process Clause of the Fourteenth Amendment.46