Twining v. New Jersey, 211 U.S. 78 (1908), was a U.S. Supreme Court decision holding that the Fifth Amendment right against self-incrimination did not apply to state criminal trials. By an 8–1 vote, the Court ruled that a New Jersey judge could tell jurors to draw negative conclusions from a defendant’s refusal to testify, because nothing in the federal Constitution stopped states from allowing that practice. The decision stood for more than half a century and became one of the earliest and most consequential rulings on whether the Bill of Rights binds state governments at all.
How the Case Started
Albert C. Twining and David C. Cornell were directors of the Monmouth Trust and Safe Deposit Company in New Jersey. A Monmouth County grand jury indicted both men on charges that they knowingly showed a falsified document to a state bank examiner, Larue Vreedenberg, to mislead him about the company’s finances.1Justia U.S. Supreme Court Center. Twining v. State The company was insolvent, and the paper was designed to conceal that fact from regulators.
Neither defendant took the witness stand at trial. The judge then instructed the jury that it could treat that silence as evidence against them. New Jersey law at the time permitted a judge to tell jurors that a defendant’s failure to deny incriminating evidence could support an unfavorable inference. The jury convicted both men on March 1, 1904.1Justia U.S. Supreme Court Center. Twining v. State After the New Jersey Supreme Court and the state’s Court of Errors and Appeals affirmed the convictions, Twining and Cornell brought their case to the U.S. Supreme Court.
The Constitutional Question
The question was whether the federal Constitution stopped a state court from penalizing a defendant for staying silent. The defendants raised two theories under the Fourteenth Amendment. First, that its Privileges or Immunities Clause protected the Fifth Amendment right against self-incrimination from state interference. Second, that its Due Process Clause independently required states to honor that right as part of any fair trial.
Both theories asked the Court to extend the reach of the Bill of Rights beyond the federal government. In 1908, the first eight amendments were generally understood to restrict only Congress and federal officials. A ruling for the defendants would have forced every state to change how it handled a defendant’s silence.
What the Supreme Court Decided
The Court rejected both arguments and held that the right against self-incrimination was not protected against state action by any part of the federal Constitution.1Justia U.S. Supreme Court Center. Twining v. State
On due process, the Court treated the right as a procedural rule rather than a bedrock principle of liberty. The opinion traced the privilege’s history and concluded that it had not been universally recognized even in English law before American independence. Because the right developed late and was not embraced everywhere, a state could grant or withhold it. Due process protected individuals from arbitrary government power, the Court said, but allowing a jury to consider a defendant’s silence did not cross that line.1Justia U.S. Supreme Court Center. Twining v. State
On the Privileges or Immunities Clause, the Court leaned on the Slaughter-House Cases (1873), which had drawn a sharp line between national and state citizenship. Rights tied to the federal government’s character or specifically named in the Constitution belonged to national citizenship; everything else belonged to the states. The Court placed the right against self-incrimination in the state category, so the Fourteenth Amendment offered no protection when a state chose to weaken it.1Justia U.S. Supreme Court Center. Twining v. State
The practical result was blunt. Federal defendants got the full protection of the Fifth Amendment. State defendants got whatever their legislature decided to give them.
Justice Harlan’s Dissent
Justice John Marshall Harlan was the lone dissenter. He argued that the right against self-incrimination was a fundamental principle inherited from English common law and that the Fourteenth Amendment was designed to protect it from state interference. He read the Privileges or Immunities Clause far more broadly than the majority: once the Fifth Amendment recognized the right, it became a privilege of national citizenship that no state could override.2Supreme Court of the United States. Twining v. State of New Jersey
Harlan also argued that due process independently required the right, reasoning that a trial where the government could effectively punish a defendant for silence was not a fair trial. His dissent grouped the privilege alongside free speech and the ban on cruel punishment as protections too important to leave to individual states. It took more than fifty years, but his position eventually prevailed.
The Line That Opened the Door
Even in rejecting the defendants’ claims, the majority left an opening. The opinion allowed that it was “possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action” through the Fourteenth Amendment’s due process guarantee. That single sentence became the doctrinal seed for what later courts called selective incorporation. In Palko v. Connecticut (1937), Justice Benjamin Cardozo built on the Twining framework with an “ordered liberty” standard, describing a “process of absorption” that would pull certain federal rights into the Fourteenth Amendment because “neither liberty nor justice would exist if they were sacrificed.”3Justia U.S. Supreme Court Center. Palko v. Connecticut
How Twining Was Overturned
Twining’s holding survived for 56 years. Along the way, the Court reaffirmed it in Adamson v. California (1947) by a 5–4 vote, with Justice Hugo Black writing a well-known dissent that called for total incorporation of the entire Bill of Rights.4Justia U.S. Supreme Court Center. Adamson v. California The margin signaled that the Court was moving.
In Malloy v. Hogan, 378 U.S. 1 (1964), the Court held that the Fourteenth Amendment does prohibit state infringement of the right against self-incrimination, just as the Fifth Amendment binds the federal government. Selective incorporation was the vehicle, and the Court noted that its more recent rulings had “departed from the contrary view expressed” in Twining and Adamson.5Justia U.S. Supreme Court Center. Malloy v. Hogan
The next year, Griffin v. California, 380 U.S. 609 (1965), reached the exact practice that had produced Twining in the first place. The Court ruled that the Fifth Amendment, applied to the states through the Fourteenth, forbids both prosecutorial comment on a defendant’s silence and judicial instructions telling jurors they may treat silence as evidence of guilt.6Justia U.S. Supreme Court Center. Griffin v. California The jury instruction upheld in Twining became a textbook Fifth Amendment violation.
Every court in the country now follows the same rule. A defendant’s decision to remain silent cannot be held against them: prosecutors cannot mention it, judges cannot comment on it, and juries cannot be told to draw any inference from it. The uniform protection Harlan argued for in 1908 is settled law.