## Facts

- Albert C. Twining and David C. Cornell, directors of a New Jersey trust and safe deposit company, were indicted for knowingly exhibiting a false paper to deceive a state bank examiner.
- The prosecution alleged they presented a falsified document representing that a board meeting had occurred when it had not.
- New Jersey law permitted criminal defendants to testify in their own defense.
- The defendants chose not to testify.
- The trial judge instructed the jury it could draw an unfavorable inference from the defendants’ failure to testify.
- The jury convicted them, and they were sentenced to imprisonment.
- New Jersey’s highest courts affirmed, and the defendants sought U.S. Supreme Court review, arguing the instruction violated the Fourteenth Amendment by denying the Fifth Amendment privilege against self-incrimination.

## Issues

1. Whether the Fourteenth Amendment’s Privileges or Immunities Clause makes the Fifth Amendment privilege against self-incrimination enforceable against the states.
2. Whether the Fourteenth Amendment’s Due Process Clause requires states to recognize the privilege against self-incrimination as a component of due process.
3. Whether a state may permit the jury to draw an unfavorable inference from a criminal defendant’s refusal to testify without violating the Federal Constitution.

## Decision

- The Supreme Court affirmed the convictions in an 8–1 decision.
- The Court held that the Fifth Amendment privilege against self-incrimination was not protected against state action by the Fourteenth Amendment.
- Because the Federal Constitution did not require states to honor that privilege, New Jersey’s allowance of adverse inference from silence did not present a federal constitutional violation.
- The Court stated it was not deciding whether such an instruction would violate the privilege if the privilege were applicable to the states.
- Justice Harlan dissented, viewing the privilege as a fundamental aspect of liberty protected by the Fourteenth Amendment.

## Legal Principles

- The first eight amendments originally restricted only federal action; they do not automatically constrain the states through the Fourteenth Amendment.
- The Privileges or Immunities Clause protects a narrow set of rights of national citizenship; exemption from compulsory self-incrimination in state courts was not treated as among them.
- Due process under the Fourteenth Amendment protects against arbitrary governmental power, but not every right listed in the Bill of Rights is an element of due process enforceable against the states.
- A right’s specific enumeration in the Bill of Rights may indicate it is a distinct guarantee rather than an implied component of due process.
- The Court accepted that some rights might be so fundamental as to be protected by due process, but concluded the self-incrimination privilege was not required of states on that theory.

## Conclusion

The Court upheld New Jersey’s conviction and jury-instruction practice on the ground that the Fourteenth Amendment did not make the Fifth Amendment privilege against self-incrimination binding on the states, leaving states free, at the time, to permit adverse inferences from a defendant’s refusal to testify.


Twining v. New Jersey, 211 U.S. 78 (1908)