Malloy v. Hogan
Decided June 15, 1964, 378 US 1


A. Issues Discussed: 14th Amendment, 5th Amendment, criminal justice (procedure)
B. Legal Question Presented:

Does the 14th Amendment protect a state witness's Fifth Amendment guarantee against self-incrimination in a criminal proceeding?

A. Background:

After being arrested during a 1959 gambling raid by Hartford, Connecticut police petitioner William Malloy plead guilty to pool selling, a misdemeanor, and was sentenced to one year in jail and fined $500. 90 days later, Malloy's sentence was suspended and he was placed on two years probation. 16 months following his plea, he was ordered by a Superior Court appointed referee to testify about gambling and other criminal activities. Refusing to answer questions about the circumstances of his arrest and conviction on the ground that his answers could possibly incriminate him, Malloy was imprisoned for contempt and held until answering the court. Challenging his confinement Malloy filed an application for writ of habeas corpus, which was denied by the highest state court. On appeal from the Connecticut Supreme Court of Errors ruling, upholding an adverse Superior Court denial, the Supreme Court granted certiorari.
B. Counsel of Record:
Opposing Side
Harold Strauch argued the cause and filed a brief for petitioner.

John D. LaBelle, State's Attorney for Connecticut, argued the cause for respondent. With him on the brief were George D. Stoughton and Harry W. Hultgren, Jr., Assistant State's Attorneys.
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Melvin L. Wulf filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal. Briefs of amici curiae, urging affirmance, were filed by Stanley Mosk, Attorney General of California; William E. James, Assistant Attorney General; and Gordon Ringer, Deputy Attorney General, for the State of California; and by Frank S. Hogan, Edward S. Silver, H. Richard Uviller, Michael R. Juviler, Aaron E. Koota and Irving P. Seidman for the National District Attorneys' Association.

"We hold today that the Fifth Amendment's exception from compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgment by the States...

[T]oday the admissibility of a confession in a state criminal prosecution is tested by the same standard applied in federal prosecutions since 1897, when... the Court held that '[i]n criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no person `shall be compelled in any criminal case to be a witness against himself.' ... Under this test, the constitutional inquiry is not whether the conduct of state officers in obtaining the confession was shocking, but whether the confession was 'free and voluntary: that is, [it] must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence...' In other words the person must not have been compelled to incriminate himself. We have held inadmissible even a confession secured by so mild a whip as the refusal, under certain circumstances, to allow a suspect to call his wife until he confessed...

The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement - the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty...

We turn to the petitioner's claim that the State of Connecticut denied him the protection of his federal privilege. It must be considered irrelevant that the petitioner was a witness in a statutory inquiry and not a defendant in a criminal prosecution, for it has long been settled that the privilege protects witnesses in similar federal inquiries...

We also said that, in applying that test, the judge must be 'perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answer[s] cannot possibly have such tendency to incriminate...

The conclusions of the Court of Errors, tested by the federal standard, fail to take sufficient account of the setting in which the questions were asked. The interrogation was 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.

We conclude, therefore, that as to each of the questions, it was 'evident from the implications of the question, in the setting in which it [was] asked, that a responsive answer to the question or an explanation of why it [could not] be answered might be dangerous because injurious disclosure could result.'"

Held: The judgments are reversed.
Justice Vote: 5 Pro vs. 4 Con
  • Brennan, W. Pro (Wrote majority opinion)
  • Black, H. Pro (Joined majority opinion)
  • Warren, E. Pro (Joined majority opinion)
  • Goldberg, A. Pro (Joined majority opinion)
  • Douglas, W. Pro (Wrote concurring opinion)
  • Harlan, J. Con (Wrote dissenting opinion)
  • Clark, T. Con (Voted with the minority, joined Harlan's dissent)
  • White, B. Con (Wrote dissenting opinion)
  • Stewart, P. Con (Voted with the minority, joined White's dissent)

    The ACLU filed as amicus urging reversal; the Supreme Court reversed the ruling of the lower courts in a 5-4 vote, giving the ACLU an apparent win.