Malloy v. Hogan/Dissent Harlan

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Mr. Justice HARLAN, whom Mr. Justice CLARK joins, dissenting.

Connecticut has adjudged this petitioner in contempt for refusing to answer questions in a state inquiry. The courts of the State, whose laws embody a privilege against self-incrimination, refused to recognize the petitioner's claim of privilege, finding that the questions asked him were not incriminatory. This Court now holds the contempt adjudication unconstitutional because, it is decided: (1) the Fourteenth Amendment makes the Fifth Amendment privilege against self-incrimination applicable to the States; (2) the federal standard justifying a claim of this privilege likewise applies to the States; and (3) judged by that standard the petitioner's claim of privilege should have been upheld.

Believing that the reasoning behind the Court's decision carries extremely mischievous, if not dangerous, consequences for our federal system in the realm of criminal law enforcement, I must dissent. The importance of the issue presented and the serious incursion which the Court makes on time-honored, basic constitutional principles justify a full exposition of my reasons.

I can only read the Court's opinion as accepting in fact what it rejects in theory: the application to the States, via the Fourteenth Amendment, of the forms of federal criminal procedure embodied within the first eight Amendments to the Constitution. While it is true that the Court deals today with only one aspect of state criminal procedure, and rejects the wholesale 'incorporation' of such federal constitutional requirements, the logical gap between the Court's premises and its novel constitutional conclusion can, I submit, be bridged only by the additional premise that the Due Process Clause of the Fourteenth Amendment is a shorthand directive to this Court to pick and choose among the provisions of the first eight Amendments and apply those chosen, freighted with their entire accompanying body of federal doctrine, to law enforcement in the States.

I accept and agree with the proposition that continuing re-examination of the constitutional conception of Fourteenth Amendment 'due process' of law is required, and that development of the community's sense of justice may in time lead to expansion of the protection which due process affords. In particular in this case, I agree that principles of justice to which due process gives expression, as reflected in decisions of this Court, prohibit a State, as the Fifth Amendment prohibits the Federal Government, from imprisoning a person solely because he refuses to give evidence which may incriminate him under the laws of the State. [1] I do not understand, however, how this process of re-examination, which must refer always to the guiding standard of due process of law, including, of course, reference to the particular guarantees of the Bill of Rights, can be short-circuited by the simple device of incorporating into due process, without critical examination, the whole body of law which surrounds a specific prohibition directed against the Federal Government. The consequence of such an approach to due process as it pertains to the States is inevitably disregard of all relevant differences which may exist between state and federal criminal law and its enforcement. The ultimate result is compelled uniformity, which is inconsistent with the purpose of our federal system and which is achieved either by encroachment on the States' sovereign powers or by dilution in federal law enforcement of the specific protections found in the Bill of Rights.

As recently as 1961, this Court reaffirmed that 'the Fifth Amendment's privilege against self-incrimination,' ante, p. 3, was not applicable against the States. Cohen v. Hurley, 366 U.S. 117, 81 S.Ct. 954. The question had been most fully explored in Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14. Since 1908, when Twining was decided, this Court has adhered to the view there expressed that 'the exemption from compulsory self-incrimination in the courts of the states is not secured by any part of the Federal Constitution,' 211 U.S., at 114, 29 S.Ct., at 26; Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330; Brown v. Mississippi, 297 U.S. 278, 285, 56 S.Ct. 461, 464; Palko v. Connecticut, 302 U.S. 319, 324, 58 S.Ct. 149, 151; Adamson v. California, 332 U.S. 46, 67 S.Ct. 1672, 91 L.Ed. 1903; Knapp v. Schweitzer, 357 U.S. 371, 374, 78 S.Ct. 1302, 1304, 2 L.Ed.2d 1393; Cohen, supra. Although none of these cases involved a commitment to prison for refusing to incriminate oneself under state law, and they are relevantly distinguishable from this case on that narrow ground, [2] it is perfectly clear from them that until today it has been regarded as settled law that the Fifth Amendment privilege did not, by any process of reasoning, apply as such to the States.

The Court suggests that this consistent line of authority has been undermined by the concurrent development of constitutional doctrine in the areas of coerced confessions and search and seizure. That is post facto reasoning at best. Certainly there has been no intimation until now that Twining has been tacitly overruled.

It was in Brown v. Mississippi, supra, that this Court first prohibited the use of a coerced confession in a state criminal trial. The petitioners in Brown had been tortured until they confessed. The Court was hardly making an artificial distinction when it said:

'* * * (T)he question of the right of the state to withdraw the privilege against self-incrimination is not here involved. The compulsion to which the quoted statements (from Twining and Snyder, supra,) refer is that of the processes of justice by which the accused may be called as a witness and required to testify. Compulsion by torture to extort a confession is a different matter.' [3] 297 U.S., at 285, 56 S.Ct. at 464. (Emphasis supplied.)

The majority is simply wrong when it asserts that this perfectly understandable distinction 'was soon abandoned,' ante, pp. 6-7. In none of the cases cited, ante pp. 7-8, in which was developed the full sweep of the constitutional prohibition against the use of coerced confessions at state trials, was there anything to suggest that the Fifth Amendment was being made applicable to state proceedings. In Lisenba v. California, 314 U.S. 219, 62 S.Ct. 280, the privilege against self-incrimination is not mentioned. The relevant question before the Court was whether 'the evidence (of coercion) requires that we set aside the finding of two courts and a jury and adjudge the admission of the confessions so fundamentally unfair, so contrary to the common concept of ordered liberty as to amount to a taking of life without due process of law.' Id., 314 U.S. at 238, 62 S.Ct. at 291. The question was the same in Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192; the Court there adverted to the 'third degree,' e.g., id., 322 U.S. at 150, note 5, 64 S.Ct. at 924, and 'secret inquis torial practices,' id., 322 U.S. at 152, 64 S.Ct. at 925. Malinski v. New York, 324 U.S. 401, 65 S.Ct. 781, is the same; the privilege against self-incrimination is not mentioned. [4] So too in Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202; Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917; and Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336. Finally, in Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, although the Court did recognize that 'ours is an accusatorial and not an inquisitorial system,' id., 365 U.S. at 541, 81 S.Ct. at 739, it is clear that the Court was concerned only with the problem of coerced confessions, see ibid.; the opinion includes nothing to support the Court's assertion here, ante, p. 1493, that 'THE FIFTH AMENDMENT PRIVILEGE IS * * * (the) esSentiAL mainstay' of our system.

In Adamson, supra, the Court made if explicit that it did not regard the increasingly strict standard for determining the admissibility at trial of an out-of-court confession as undermining the holding of Twining. After stating that 'the due process clause does not protect, by virtue of its mere existence the accused's freedom from giving testimony by compulsion in state trials that is secured to him against federal interference by the Fifth Amendment,' the Court said: 'The due process clause forbids compulsion to testify by fear of hurt, torture or exhaustion. It forbids any other type of coercion that falls within the scope of due process.' 332 U.S., at 54, 67 S.Ct. at 1676. (footnotes omitted). Plainly, the Court regarded these two lines of cases as distinct. See also Palko v. Connecticut, supra, 302 U.S., at 326, 58 S.Ct. at 152, to the same effect. [5] Cohen, supra, which adhered to Twining, was decided after all but a few of the confession cases which the Court mentions.

The coerced confession cases are relevant to the problem of this case not because they overruled Twining sub silentio, but rather because they applied the same standard of fundamental fairness which is applicable here. The recognition in them that federal supervision of state criminal procedures must be directly based on the requirements of due process is entirely inconsistent with the theory here espoused by the majority. The parallel treatment of federal and state cases involving coerced confessions resulted from the fact that the same demand of due process was applicable in both; it was not the consequence of the automatic engrafting of federal law construing constitutional provisions inapplicable to the States onto the Fourteenth Amendment.

The decision in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, that evidence unconstitutionally seized, see Wolf v. Colorado, 338 U.S. 25, 28, 69 S.Ct. 1359, 1361, may not be used in a state criminal trial furnishes no 'fortification,' see ante, p. 8, for today's decision. The very passage from the M pp opinion which the Court quotes, ante, p. 9 makes explicit the distinct bases of the exclusionary rule as applied in federal and state courts:

'We find that, as to the Federal Government, the Fourth and Fifth Amendments and, as to the States, the freedom from unconscionable invasions of privacy and the freedom from convictions based upon coerced confessions do enjoy an 'intimate relation' in their perpetuation of 'principles of humanity and civil liberty (secured) * * * only after years of struggle,' Bram v. United States, 1897, 168 U.S. 532, 543-544, 18 S.Ct. 183, 187.' 367 U.S., at 656-657, 81 S.Ct., at 1692 (footnote omitted). See also id., 367 U.S. at 655, 81 S.Ct., at 1691.

Although the Court discussed Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, a federal case involving both the Fourth and Fifth Amendments, nothing in Mapp supports the statement, ante, p. 8, that the Fifth Amendment was part of the basis for extending the exclusionary rule to the States. The elaboration of Mapp in Ker v. California, 374 U.S. 23, 83 S.Ct. 1623, 10 L.Ed.2d 726, did in my view make the Fourth Amendment applicable to the States through the Fourteenth; but there is nothing in it to suggest that the Fifth Amendment went along as baggage.

The previous discussion shows that this Court's decisions do not dictate the 'incorporation' of the Fifth Amendment's privilege against self-incrimination into the Fourteenth Amendment. Approaching the question more broadly, it is equally plain that the line of cases exemplified by Palko v. Connecticut, supra, in which this Court has reconsidered the requirements which the Due Process Clause imposes on the States in the light of current standards, furnishes no general theoretical framework for what the Court does today.

The view of the Due Process Clause of the Fourteenth Amendment which this Court has consistently accepted and which has 'thus far prevailed,' ante, p. 4, is that its requirements are as 'old as a principle of civilized government,' Munn v. Illinois, 94 U.S. 113, 123, 24 L.Ed. 77, the specific applications of which must be ascertained 'by the gradual process of judicial inclusion and exclusion * * *,' Davidson v. New Orleans, 96 U.S. 97, 104, 24 L.Ed. 616. Due process requires 'observance of those general rules established in our system of jurisprudence for the security of private rights.' Hagar v. Reclamation District No. 108, 111 U.S. 701, 708, 4 S.Ct. 663, 667, 28 L.Ed. 569. See Hurtado v. California, 110 U.S. 516, 537, 4 S.Ct. 111, 121.

'This court has never attempted to define with precision the words 'due process of law' * * *. It is sufficient to say that there are certain immutable principles of justice, which inhere in the very idea of free government, which no member of the Union may disregard * * *.' Holden v. Hardy, 169 U.S. 366, 389, 18 S.Ct. 383, 387, 42 L.Ed. 780.

It followed from this recognition that due process encompassed the fundamental safeguards of the individual against the abusive exercise of governmental power that some of the restraints on the Federal Government which were specifically enumerated in the Bill of Rights applied also against the States. But, while inclusion of a particular provision in the Bill of Rights might provide historical evidence that the right involved was traditionally regarded as fundamental, inclusion of the right in due process was otherwise entirely independent of the first eight Amendments:

'* * * (I)t is possible that some of the personal rights safeguarded by the first eight Amendments against national action may also be safeguarded against state action, because a denial of them would be a denial of due process of law. * * * If this is so, it is not because those rights are enumerated in the first eight Amendments, but because they are of such a nature that they are included in the conception of due process of law.' Twining, supra, 211 U.S. at 99, 29 S.Ct. at 19. (Emphasis supplied.)

Relying heavily on Twining, Mr. Justice Cardozo provided what may be regarded as a classic expression of this approach in Palko v. Connecticut, supra. After considering a number of individual rights (including the right not to incriminate oneself) which were 'not of the very essence of a scheme of ordered liberty,' id., 302 U.S. at 325, 58 S.Ct. at 152, he said:

'We reach a different plane of social and moral values when we pass to the privileges and immunities that have been taken over from the earlier articles of the Federal Bill of Rights and brought within the Fourteenth Amendment by a process of absorption. These in their origin were effective against the federal government alone. If the Fourteenth Amendment has absorbed them, the process of absorption has had its source in the belief that neither liberty nor justice would exist if they were sacrificed.' Id., 302 U.S. at 326, 58 S.Ct. at 152.

Further on Mr. Justice Cardozo made the independence of the Due Process Clause from the provisions of the first eight Amendments explicit:

'Fundamental * * * in the concept of due process, and so in that of liberty, is the thought that condemnation shall be rendered only after trial. Scott v. McNeal, 154 U.S. 34, 14 S.Ct. 1108, 38 L.Ed. 896; Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375. The hearing, moreover, must be a real one, not a sham or a pretense. Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543; Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791. For that reason, ignorant defendants in a capital case were held to have been condemned unlawfully when in truth, though not in form, they were refused the aid of counsel. Powell v. Alabama, supra, 287 U.S. 45, at pages 67, 68, 53 S.Ct. 55, 63, 77 L.Ed. 158, 84 A.L.R. 527. The decision did not turn upon the fact that the benefit of counsel would have been guaranteed to the defendants by the provisions of the Sixth Amendment if they had been prosecuted in a federal court. The decision turned upon the fact that in the particular situation laid before us in the evidence the benefit of counsel was essential to the substance of a hearing.' Id., 302 U.S. at 327, 58 S.Ct. at 153.

It is apparent that Mr. Justice Cardozo's metaphor of 'absorption' was not intended to suggest the transplantation of case law surrounding the specifics of the first eight Amendments to the very different soil of the Fourteenth Amendment's Due Process Clause. For, as he made perfectly plain, what the Fourteenth Amendment requires of the States does not basically depend on what the first eight Amendments require of the Federal Government.

Seen in proper perspective, therefore, the fact that First Amendment protections have generally been given equal scope in the federal and state domains or that in some areas of criminal procedure the Due Process Clause demands as much of the States as the Bill of Rights demands of the Federal Government, is only tangentially relevant to the question now before us. It is toying with constitutional principles to assert that the Court has 'rejected the notion that the Fourteenth Amemdment applies to the states only a 'watered-down, subjective version of the individual guarantees of the Bill of Rights," ante, pp. 10-11. What the Court has with the single exception of the Ker case, supra, p. 21; see infra, p. 26, consistently rejected is the notion that the Bill of Rights, as such, applies to the States in any aspect at all.

If one attends to those areas to which the Court points, ante, p. 10, in which the prohibitions against the state and federal governments have moved in parallel tracks, the cases in fact reveal again that the Court's usual approach has been to ground the prohibitions against state action squarely on due process, without intermediate reliance on any of the first eight Amendments. Although more recently the Court has referred to the First Amendment to describe the protection of free expression against state infringement, earlier cases leave no doubt that such refer nces are 'shorthand' for doctrines developed by another route. In Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 630, for example, the Court said:

'For present purposes we may and do assume that freedom of speech and of the press-which are protected by the First Amendment from abridgment by Congress-are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States.'

The Court went on to consider the extent of those freedoms in the context of state interests. Mr. Justice Holmes, in dissent, said:

'The general principle of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of the scope that has been given to the word 'liberty' as there used, although perhaps it may be accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the sweeping language that governs or ought to govern the laws of the United States.' Id., 268 U.S. at 672, 45 S.Ct. at 632.

Chief Justice Hughes, in De Jonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 260, gave a similar analysis:

'Freedom of speech and of the press are fundamental rights which are safeguarded by the due process clause of the Fourteenth Amendment of the Federal Constitution. * * * The right of peaceable assemply is a right cognate to those of free speech and free press and is equally fundamental. As this Court said in United States v. Cruikshank, 92 U.S. 542, 552, 23 L.Ed. 588: 'The very idea of a government, repulican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances.' The First Amendment of the Federal Constitution expressly guarantees that right against abridgment by Congress. But explicit mention there does not argue exclusion elsewhere. For the right is one that cannot be denied without violating those fundamental principles of liberty and justice which lie at the base of all civil and political institutions-principles which the Fourteenth Amendment embodies in the general terms of its due process clause.'

The coerced confession and search and seizure cases have already been considered. The former, decided always directly on grounds of fundamental fairness, furnish no support for the Court's present views. Ker v. California, supra, did indeed incorporate the Fourth Amendment's protection against invasions of privacy into the Due Process Clause. But that case should be regarded as the exception which proves the rule. [6] The right to counsel in state criminal proceedings, which this Court assured in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, does not depend on the Sixth Amendment. In Betts v. Brady, 316 U.S. 455, 462, 62 S.Ct., 1252, 1256, this Court had said:

'Due process of law is secured against invasion by the federal Government by the Fifth Amendment and is safeguarded against state action in identical words by the Fourteenth. The phrase formulates a concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights. Its application is less a matter of rule. Asserted denial is to be tested by an appraisal of the totality of facts in a given case. That which may, in one setting, constitute a denial of fundamental fairness, shocking to the universal sense of justice, may, in other circumstances, and in the light of other considerations, fall short of such denial.' (Footnote omitted.) Although Gideon overruled Betts, the constitutional approach in both cases was the same. Gideon was based on the Court's conclusion, contrary to that reached in Betts, that the appointment of counsel for an indigent criminal defendant was essential to the conduct of a fair trial, and was therefore part of due process. 372 U.S., at 342-345, 83 S.Ct. at 79 -797.

The Court's approach in the present case is in fact nothing more or less than 'incorporation' in snatches. If, however, the Due Process Clause is something more than a reference to the Bill of Rights and protects only those rights which derive from fundamental principles, as the majority purports to believe, it is just as contrary to precedent and just as illogical to incorporate the provisions of the Bill of Rights one at a time as it is to incorporate them all at once.

The Court's undiscriminating approach to the Due Process Clause carries serious implications for the sound working of our federal system in the field of criminal law.

The Court concludes, almost without discussion, that 'the same standards must determine whether an accused's silence in either a federal or state proceeding is justified,' ante, p. 11. About all that the Court offers in explanation of this conclusion is the observation that it would be 'incongruous' if different standards governed the assertion of a privilege to remain silent in state and federal tribunals. Such 'incongruity,' however, is at the heart of our federal system. The powers and responsibilities of the state and federal governments are not congruent; under our Constitution, they are not intended to be. Why should it be thought, as an a priori matter, that limitations on the investigative power of the States are in all respects identical with limitations on the investigative power of the Federal Government? This certainly does not follow from the fact that we deal here with constitutional requirements; for the provisions of the Constitution which are construed are different.

As the Court pointed out in Abbate v. United States, 359 U.S. 187, 195, 79 S.Ct. 666, 671, 3 L.Ed.2d 729, 'the States under our federal system have the principal responsibility for defining and prosecuting crimes.' The Court endangers this allocation of responsibility for the prevention of crime when it applies to the States doctrines developed in the context of federal law enforcement, without any attention to the special problems which the States as a group or particular States may face. If the power of the States to deal with local crime is unduly restricted, the likely consequence is a shift of responsibility in this area to the Federal Government, with its vastly greater resources. Such a shift, if it occurs, may in the end serve to weaken the very liberties which the Fourteenth Amendment safeguards by bringing us closer to the monolithic society which our federalism rejects. Equally dangerous to our liberties is the alternative of watering down protections against the Federal Government embodied in the Bill of Rights so as not unduly to restrict the powers of the States. The dissenting opinion in Aguilar v. Texas, 378 U.S., p. 116, 84 S.Ct., p. 1515, evidences that this danger is not imaginary. See my concurring opinion in Aguilar, ibid.

Rather than insisting, almost by rote, that the Connecticut court, in considering the petitioner's claim of privilege, was required to apply the 'federal standard,' the Court should have fulfilled its responsibility under the Due Process Clause by inquiring whether the proceedings below met the demands of fundamental fairness which due process embodies. Such an approach may not satisfy those who see in the Fourteenth Amendment a set of easily applied 'absolutes' which can afford a haven from unsettling doubt. It is, however, truer to the spirit which requires this Court constantly to re-examine fundamental principles and at the same time enjoins it from reading its own preferences into the Constitution.

The Connecticut Supreme Court of Errors gave full and careful consideration to the petitioner's claim that he would incriminate himself if he answered the questions put to him. It noted that its decisions 'from a time antedating the adoption of * * * (the Connecticut) constitution in 1818' had upheld a privilege to refuse to answer incriminating qu stions. 150 Conn. 220, 223, 187 A.2d 744, 746. Stating that federal cases treating the Fifth Amendment privilege had 'persuasive force' in interpreting its own constitutional provision, and citing Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, in particular, the Supreme Court of Errors described the requirements for assertion of the privilege by quoting from one of its own cases, id., 150 Conn., at 225, 187 A.2d, at 747:

'(A) witness * * * has the right to refuse to answer any question which would tend to incriminate him. But a mere claim on his part that the evidence will tend to incriminate him is not sufficient. * * * (He having) made his claim, it is then * * * (necessary for the judge) to determine in the exercise of a legal discretion whether, from the circumstances of the case and the nature of the evidence which the witness is called upon to give, there is reasonable ground to apprehend danger of criminal liability from his being compelled to answer. That danger 'must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things-not a danger of an imaginary and unsubstantial character, having reference to some extraordinary and barely possible contingency, so improbable that no reasonable man would suffer it to influence his conduct. We think that a merely remote and naked possibility, out of the ordinary course of law and such as no reasonable man would be affected by, should not be suffered to obstruct the administration of justice. The object of the law is to afford to a party, called upon to give evidence in a proceeding inter alios, protection against being brought by means of his own evidence within the penalties of the law. But it would be to convert a salutary protection into a means of abuse if it were to be held that a mere imaginary possibility of danger, however remote and improbable, was sufficient to justify the withholding of evidence essential to the ends of justice.' Cockburn, C.J., in Regina v. Boyes, 1 B. & S. 311, 330 * * *.' McCarthy v. Clancy, 110 Conn. 482, 488-489, 148 A. 551, 555.

The court carefully applied the above standard to each question which the petitioner was asked. It dealt first with the question whether he knew John Bergoti. The court said:

'Bergoti is nowhere described or in any way identified, either as to his occupation, actual or reputed, or as to any criminal record he may have had. * * * Malloy made no attempt even to suggest to the court how an answer to the question whether he knew Bergoti could possibly incriminate him. * * * On this state of the record the question was proper, and Malloy's claim of privilege, made without explanation, was correctly overruled. Malloy 'chose to keep the door tightly closed and to deny the court the smallest glimpse of the danger he apprehended. He cannot then complain that we see none.' In re Pillo, 11 N.J. 8, 22, 93 A.2d 176, 183 * * *.' 150 Conn., at 226-227, 187 A.2d, at 748.

The remaining questions are summarized in the majority's opinion, ante, p. 12. All of them deal with the circumstances surrounding the petitioner's conviction on a gambling charge in 1959. The court declined to decide 'whether, on their face and apart from any consideration of Malloy's immunity from prosecution, the questions should or should not have been answered in the light of his failure to give any hint of explanation as to how answers to them could incriminate him.' 150 Conn., at 227, 187 A.2d, at 748. The court considered the State's claim that the petitioner's prior conviction was sufficient to clothe him with immunity from prosecution for other crimes to which the questions might pertain, but declined to rest its decision on that basis. Id., 150 Conn., at 227-229, 187 A.2d, at 748-749. The court concluded, however, that the running of the statute of limitations on misdemeanors committed in 1959 and the absence of any indication that Malloy had engaged in any crime other than a misdemeanor removed all appearance of dang r of incrimination from the questions propounded concerning the petitioner's activities in 1959. The court summarized this conclusion as follows:

'In all this, Malloy confounds vague and improbable possibilities of prosecution with reasonably appreciable ones. Under claims like his, it would always be possible to work out some finespun and improbable theory from which an outside chance of prosecution could be envisioned. Such claims are not enough to support a claim of privilege, at least where, as here, a witness suggests no rational explanation of his fears of incrimination, and the questions themselves, under all the circumstances, suggest none.' Id., 150 Conn., at 230-231, 187 A.2d, at 750.

Peremptorily rejecting all of the careful analysis of the Connecticut court, this Court creates its own 'finespun and improbable probable theory' about how these questions might have incriminated the petitioner. With respect to his acquaintance with Bergoti, this Court says only:

'In the context of the inquiry, it should have been apparent to the referee that Bergoti was suspected by the State to be involved in some way in the subject matter of the investigation. An affirmative answer to the question might well have either connected petitioner with a more recent crime, or at least have operated as a waiver of his privilege with reference to his relationship with a possible criminal.' Ante, pp. 13-14.

The other five questions, treated at length in the Connecticut court's opinion, get equally short shrift from this Court; it takes the majority, unfamiliar with Connecticut law and far removed from the proceedings below, only a dozen lines to consider the questions and conclude that they were incriminating:

'The interrogation was a part of a wide-ranging inquiry into crime, including gambling, in Hartford. It was admitted on behalf of the State at oral argument-and indeed it is obvious from the questions themselves-that the State desired to elicit from the petitioner the identity of the person who ran the pool-selling operation in connection with which he had been arrested in 1959. It was apparent that petitioner might apprehend that if this person were still engaged in unlawful activity, disclosure of his name might furnish a link in a chain of evidence sufficient to connect the petitioner with a more recent crime for which he might still be prosecuted.' (Footnote omitted.) Ante, p. 13.

I do not understand how anyone could read the opinion of the Connecticut court and conclude that the state law which was the basis of its decision or the decision itself was lacking in fundamental fairness. The truth of the matter is that under any standard-state or federal-the commitment for contempt was proper. Indeed, as indicated above, there is every reason to believe that the Connecticut court did apply the Hoffman standard quoted approvingly in the majority's opinion. I entirely agree with my Brother WHITE, post, pp. 36-38, that if the matter is viewed only from the standpoint of the federal standard, such standard was fully satisfied. The Court's reference to a federal standard is, to put it bluntly, simply an excuse for the Court to substitute its own superficial assessment of the facts and state law for the careful and better informed conclusions of the state court. No one who scans the two opinions with an objective eye will, I think reach any other conclusion.

I would affirm.

NotesEdit

^1  That precise question has not heretofore been decided by this Court. Twining v. New Jersey, 211 U.S. 78, 29 S.Ct. 14, and the cases which

followed it, see infra, p. 17, all involved issues not precisely similar. Although the Court has stated broadly that an individual could 'be required to incriminate himself in * * * state proceedings,' Cohen v. Hurley, 366 U.S. 117, 127, 81 S.Ct. 954, 960, the context in which such statements were made was that the State had in each case recognized the right to remain silent. In Twining, supra, until now the primary authority, the Court noted that 'all the states of the Union have, from time to time, with varying form, but uniform meaning, included the privilege in their Constitutions, except the states of New Jersey and Iowa, and in those states it is held to be part of the existing law.' 211 U.S., at 92, 29 S.Ct., at 16.

While I do not believe that the coerced confession cases furnish any basis for incorporating the Fifth Amendment into the Fourteenth, see infra, pp. 17-20, they do, it seems to me, carry an implication that coercion to incriminate oneself, even when under the forms of law, cf. Brown v. Mississippi, 297 U.S. 278, 285, 56 S.Ct. 461, 464, discussed infra, pp. 17-18, is inconsistent with due process. Since every State already recognizes a privilege against self-incrimination so defined, see VIII Wigmore, Evidence (McNaughton rev. 1961), § 2252, the effect of including such a privilege in due process is only to create the possibility that a federal question, to be decided under the Due Process Clause, would be raised by a State's refusal to accept a claim of the privilege.

^2  See note 1, supra.

^3  Nothing in the opinion in Brown supports the Court's intimation here, ante, p. 6, that if Twining had not been on the books, reversal of the convictions would have been based on the Fifth Amendment. The Court made it plain in Brown that it regarded the trial use of a confession extracted by torture as on a par with domination of a trial by a mob, see, e.g., Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543, where the trial 'is a mere pretense,' 297 U.S., at 286, 56 S.Ct., at 465.

^4  'And so, when a conviction in a state court is properly here for review, under a claim that a right protected by the Fourteenth Amendment has been denied, the question is not whether the record can be found to disclose an infraction of one of the specific provisions of the first eight amendments. To come concretely to the present case, the question is not whether the record permits a finding, by a tenuous process of psychological assumptions and reasoning, that Malinski by means of a confession was forced to self-incrimination in definance of the Fifth Amendment. The exact question is whether the criminal proceedings which resulted in his conviction deprived him of the due process of law by which he was constitutionally entitled to have his guilt determined.' Malinski, supra, 324 U.S. at 416, 65 S.Ct. at 788 (opinion of Frankfurter, J.).

^5  In Adamson and Palko, supra, which adhered to the rule announced in Twining, supra, the Court cited some of the very cases now relied on by the majority to show that Twining was gradually being eroded. 332 U.S., at 54, notes 12, 13, 67 S.Ct., at 1676; 302 U.S., at 325, 326, 58 S.Ct., at 151, 152.

^6  Cf. the majority and dissenting opinions in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509.

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