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Twining v. New Jersey

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Title: Twining v. New Jersey  
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Subject: Fourteenth Amendment to the United States Constitution, Heath v. Alabama, Street v. New York, List of United States Supreme Court cases
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Twining v. New Jersey

Twining v. New Jersey
Argued March 19–20, 1908
Decided November 9, 1908
Full case name Albert C. Twining and David C. Cornell, plaintiffs in error v. State of New Jersey
Citations 211 U.S. 78 (more)
211 U.S. 78
The Fifth Amendment rights to not self incriminate apply only to federal court cases.
Court membership
Case opinions
Majority Moody, joined by Fuller, Brewer, White, Peckham, McKenna, Holmes, Day
Dissent Harlan
Overruled by
Malloy v. Hogan, 378 U.S. 1 (1964)

Twining v. New Jersey, 211 U.S. 78 (1908) presented an early standard of the Supreme Court's Incorporation Doctrine by establishing that while certain rights enumerated in the Bill of Rights might apply to the states under the 14th amendment's due process clause, the Fifth Amendment's right against self-incrimination is not so incorporated. The court overturned this decision in Malloy v. Hogan in 1964 by incorporating the right against self-incrimination.


The case involved two men charged with fraud in New Jersey who claimed 5th Amendment protection and refused to testify during their trial. The jury was told of the men's refusal to testify, and the men were convicted. They appealed, arguing that the instructions to the jury violated their 5th Amendment privilege to not incriminate themselves.


The Supreme Court used the case to decide if the 5th Amendment right against self-incrimination was valid during trials by state courts and not just federal courts. Before the adoption of the 14th Amendment, the Bill of Rights, including the 5th Amendment, did not apply to state courts. The Court did not reach the question of whether the defendants' Fifth Amendment rights were actually violated in the original trial.

The majority opinion was delivered by Justice Moody. Justice Harlan was the lone dissenter. Moody considers both the Privileges or Immunities clause and the Due Process clause of the 14th amendment: "The general question, therefore, is whether such a law violates the Fourteenth Amendment either by abridging the privileges or immunities of citizens of the United States or by depriving persons of their life, liberty or property without due process of law." (Twining v. New Jersey: 211 U.S. 78, 91).

Privileges or immunities

The court cited the decision in the Slaughter-house cases that the language in the 14th Amendment ("No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States...") did not curtail state power. The Supreme Court voted 8 to 1 that the 5th Amendment rights to not self incriminate applied only to federal court cases.

Selective incorporation

This case provides an early explanation of the doctrine of selective incorporation, in which some but not all of the Bill of Rights is applied to the states by incorporating into the 14th Amendment's due process clause. In the opinion, Justice Moody writes:

"It 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 v. New Jersey: 211 U.S. 78, 99 (1908)

The court concluded that exemption from self-incrimination was not necessary for a conception of due process.


John Marshall Harlan was the lone dissenter, writing firstly that the Court should have decided whether the defendants' rights were actually violated before reaching the "question of vast moment, one of such transcendent importance" of whether the Fifth Amendment applied to State courts and if the Fifth Amendment applied to state courts through the Due Process Clause of the Fourteenth Amendment.



The Twining decision was revisited and upheld in Adamson v. California (1947), in which the merits of Twining were of central consideration. Concurring with the majority, Justice Frankfurter wrote
"The Twining case shows the judicial process at its best -- comprehensive briefs and powerful arguments on both sides, followed by long deliberation, resulting in an opinion by Mr. Justice Moody which at once gained and has ever since retained recognition as one of the outstanding opinions in the history of the Court. After enjoying unquestioned prestige for forty years, the Twining case should not now be diluted, even unwittingly, either in its judicial philosophy or in its particulars."
— Adamson v. California: 332 U.S. 46, 59-60 (1947)

However, Justice Hugo Black disagreed and attacked Twining for giving too much power to the courts. In his famous dissent to Adamson, he wrote:

"I would not reaffirm the Twining decision. I think that decision and the "natural law" theory of the Constitution upon which it relies degrade the constitutional safeguards of the Bill of Rights, and simultaneously appropriate for this Court a broad power which we are not authorized by the Constitution to exercise."
— Adamson v. California: 332 U.S. 46, 70 (1947)


Twining was revisited once again and finally overturned in Malloy v. Hogan (1964), which incorporated the 5th amendment right against self-incrimination.

See also

Further reading

  • Twining v. New Jersey on FindLaw
  • Incorporation Doctrine
  • Twining v. New JerseySummary of
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